How did the U.S. judiciary become so powerful-powerful enough that state and federal judges vied to decide a presidential election? What does this prominence mean for the law, constitutionalism, and liberal democracy both in America and internationally?
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.
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About the Author
Paul O. Carrese is professor of political science at the United States Air Force Academy. He is coeditor of John Marshall’s The Life of George Washington and of Constitutionalism, Executive Power, and Popular Enlightenment. He lives in Air Force Academy, CO.
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The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism
By Paul Carrese
University of Chicago PressCopyright © 2003 Paul Carrese
All right reserved.
ONE - Moderating Liberalism and Common Law: Spirit and Juridical Liberty
Montesquieu introduces The Spirit of the Laws as propounding "new ideas" of man and politics, and as "the work of twenty years" of reflection upon an "infinite number of things" ("Notice," 227; "Preface," 229). His bold ideas about politics, jurisprudence, and judging are in the service, paradoxically, of moderation and tranquillity, and throughout he strives to balance practice and theory, experience and reflection. It is widely noted that he restored to political philosophy a concern with prudence and an attention to the diverse particulars of political history and practice not yet seen in modernity, nor even attempted since Aristotle, although Machiavelli is a precursor. This concern with both the realities and potentialities of political life partly explains why Montesquieu does not openly declare the importance of judicial power for his constitutionalism, since both the aims and the novelty of his conception provide reasons for cloakingsuch a proposal for reform.
This readingof Montesquieu is not shared, however, by most historical studies, which treat his views on judging and French constitutional history as largelyrepresentative of eighteenth-century juridical and political debates. A recent elaboration of this view argues that The Spirit of the Laws in fact propounds a political philosophy of historical particularity, rooted in Mon-tesquieu's experience as a provincial judge. The paradox here is that, for all the rich details provided about his career as a senior judge in the Parlement of Bordeaux and its influence upon his writings, this approach undervalues the importance of judicial power in his constitutionalism. A more serious study of this dimension of his political philosophy has argued that judicial independence is the key to his constitutionalism, but its Marxist readingtraces this to the class bias of a nobleman judge. A comparative jurist has detected contradictions in Montesquieu's account of judging which suggest his endorsement of something more than a jury-centered power, but then finds such signals incoherent or sporadic. The French scholar Simone Goyard-Fabre is one of the few to find a genuinely bold teaching about judicial power in Montesquieu's philosophy, arguing that his judicial and constitutional reforms together emphasize "the same equilibrium of elements among themselves and on the whole: the just measure, that which is called moderation in politics or justice in a court, expresses the same right ratio"or "juste milieu [golden mean]." James Stoner also has discovered "intimations in The Spirit of the Laws of a judiciary quietly instructed in reform." Montesquieu's larger aim is a juridical liberalism; books 6 and 12 teach that the "best protection for the individual is a series of judicial procedures, not devised abstractly, but developed through historical change from the manner of judgingpracticed by the Germanic tribes 'in the woods.' The tellingof this tale occupies, on and off, no small part of the remainder of the work." In the spirit of Montesquieu's emphasis on commerce, Stoner finds a teachingthat the "security of persons depends upon a kind of commerce in sound judicial practices--with philosophers as merchants and their writings as bills of ex-change."
Still, most readers of The Spirit of the Laws have not found this distinctive conception of subtle judges and a judicialized liberalism. This intentional cloakingby Montesquieu is less perplexingin light of d'Alembert's defense of the work's confusingstyle, which reiterates the jurist's own remarks on the complexity of his writings and the careful reading they require. In the Preface to The Spirit of the Laws, Montesquieu insists that his tome does have a design, asking that "one not judge, by a moment's reading, a labor of twenty years; that one approve or condemn the whole book, and not some few phrases" (229). He further encourages readingbetween his lines by statingthat "one must not always so exhaust a subject, that one leaves nothingfor a reader to do," since he wants people not only to read his work but to "think" (11.20). Montesquieu's conception of judicial power is one beneficiary of this complicated approach to philosophy, since there are sound reasons for cloakingthis proposed transformation of political power. Such a project redefines moderation in order to soften the moral character and standards of political life, through judicial attention to the interests and desires of particular individuals. Such aims would be considered morally doubtful in Montesquieu's own time and in the light of Western philosophy and Biblical religion--although, given his success and that of liberalism generally, they are less so today. Openly questionable reforms invite controversies that can hinder their reception and their ultimate efficacy. Even with Montesquieu's prudent cloakingof his intentions and teachings, The Spirit of the Laws was placed on the Catholic Church's Index of prohibited books in 1751.
Using judicial power to shelter private concerns, even vices, from public authority also involves a shift in political power. The executive and legislative powers and their traditional supporters lose some ground as professional lawyers and judges rise. Montesquieu's indirect presentation of this new teaching seems aimed at fellow jurists, judges, and lawyers, and at those who generally shared his concern to temper political life with the reasonable, measured spirit of courts of law. Blackstone, Hamilton, and Tocqueville indicate their grasp of this larger message in Montesquieu's detailed analyses of judicial procedure, legal forms, and jurisprudential principle. None of this suggests that the complex constitutional government he promotes is anything but genuinely representative, as is evident in the clash of partisan views in his pluralist, liberal, best regime (see 11.6; 19.27). He is less confident, however, than are Machiavelli, Hobbes, and Locke about completely novel foundingand artifice, or rational planningby the sovereign, or the adequacy of popular consent alone to justify legislative or executive projects. Such a shift of power, then, must occur imperceptibly. A main advantage of having a judicial, lawyerly body moderate the factional conflict between classes and institutions is that it is less partisan and passionate than the other powers, at least havingdifferent kinds of passions and concerns. It certainly is weaker than its rivals, as Hamilton argues by citing Montesquieu in Federalist no. 78, and this further entails a quiet, careful growth of influence. Moreover, this approach accords with the larger aim of moderation by judicialization, namely, the security of individuals, defined as lack of fear about their liberty and security. If this requires a learned, quasi-noble judging power, then the latter should keep free of the fray of politics and focus strictly upon judging. A humane natural right, attuned to natural sentiments, points to a discrete judging power and not an omni-competent, fearsome arm of public administration. The moral compromise inherent in such moderation indicates that judges defined by their humanity, tolerance, and mildness are hardly meant to invoke the Biblical notion of Judgment Day.
Montesquieu's general preference for quiet and steady reform over revolution, announced at length in the Preface to The Spirit of the Laws, also recommends an intricate presentation of this new conception of judicial power. He views with anxiety the doctrinaire republicanism of a Cromwell or a Locke, and at moments he seems to see a Robespierre ahead. Knowledge of judicial procedures and attention to the interests and fears of individuals will not foster rationalist theories about the costly but necessary gains of a Hegelian slaughter-bench of history. True, Montesquieu is concerned to show that political communities change and reform over time. For Rousseau, Kant, Hegel, and later moderns, however, these seeds of historical thinkinggrew into the sort of rationalist, universalistic praise for revolution and progress that the French jurist feared. His attachment to the natural rights inhering in individuals prevented his own adoption of historicism, and Montesquieu instead recommends gradual, imperceptible reform of laws and constitutions. The judging power is eminently more suited to such a strategy than are the powers more animated by passion and more inclined toward grand plans.
A Humane Natural Right and New Jurisprudence
It is only in book 29 of The Spirit of the Laws that Montesquieu explains the principle by which the abstract, Enlightenment pronouncements that open the work--on the "invariable laws" that govern all beings in the world (1.1)--fit with his general emphasis on the particularities of politics and law: "I say it, and it seems to me that I have brought forth this work only to prove it: the spirit of moderation ought to be that of the legislator; the political good, like the moral good, is always found between two extremes" (29.1, 865). Throughout the work Montesquieu's concept of moderation guides both his philosophizing and his political advice, continually seekingto avoid the extremism of adopting any single, rigid dogma. His political philosophy thus blends elements of a Newtonian science of the equilibrium achieved amongforces and ideas, a Machiavellian realism about lowered moral aims for politics, and the humane sensibilities of his predecessor as a counselor in the Parlement of Bordeaux, Montaigne. The ultimate goal of his new science of politics is liberty, but a modern conception of moderation is for him the prerequisite for liberty. He argues in particular that liberty perishes under any structural imbalance of forces or any stagnation of dynamic activity--that is, under despotism. He will not have man patiently suffer despotism, whether physical, political, or moral, as a good citizen of the city of God. He seeks means for realistically reforming the city of man to make it a more tranquil, hospitable abode, especially through inculcatinga proper political and legal prudence. To be sure, his analysis of these fundamental issues in book 1, and later in the work, is indebted in some respects to the modern rationalism of Machiavelli, Hobbes, and Locke. Still, the debt generally wanes as one moves farther into the thirty-one books, which emphasize complexity, particularity, and moderation. Upon consideringthe whole work, as the Preface directs, one finds it temperingearlier modern attempts to establish an abstract foundation for politics--whether Machiavellian acquisition of glory and rule by one alone, or a Hobbesian, Lockean liberalism of a state of nature and natural rights. Even in book 1, in the passages that bear the strongest imprint of Enlightenment theorizing, Montesquieu suggests his independence even when statinghis most general, abstract conception of law, that law governs all dimensions of reality (1.1, 232). He cites Plutarch for the maxim that "law is the kingof all, mortal and immortal," taken from an essay advisinga prince about a natural law that stands above human power and directs rulers to be just. Montesquieu refers to a classical moralist and biographer, not a modern Cartesian philosopher, for this fundamental ontological and jurisprudential premise; moreover, Plutarch himself is quotingthe poet Pindar. Unlike Hobbes, Spinoza, and Locke, Montesquieu is more concerned to educate statesmen than to indulge in abstract analysis. Unlike Machiavelli's education of princes, his own will teach that all rulers are governed by a higher law.
Montesquieu nonetheless is very much a modern, since his ateleological conception of divine law and the law of nature yields only the most minimal of natural laws (1.1-2). In contrast to Aristotle and Thomas Aquinas, who found principles of natural right or natural law in the fabric of the world, placed there by a divine mind that draws us toward itself as our ultimate goal, Montesquieu finds in nature only a general set of physical and psychological laws. His typically moderate stance on these fundamental issues, neither entirely subjective nor universalistic, is evident in the ambiguous character of the natural laws or "relations of equity" which, he argues, pre-date any political order. These indicate, for example, that "supposingthat there were societies of men, it would be just to conform to their laws"; or that "if there were intelligent beings that had received some benefit from another being, they ought to have gratitude" (1.1, 233). This conception of natural law anticipates the more explicit discussion of man's prepolitical nature in the sequel on "the laws of nature" (1.2). When read in light of the whole work, the treatment of human nature in book 1 is not so much a version of earlier state-of-nature theories as an effort to moderate their claims. Montesquieu adopts those elements that accord with his more phenomenological, political analysis of politics while exposing the excesses and difficulties of this favorite method of early liberalism. Especially because the very next usage of droit naturel in the work is so distinctly non-Hobbesian (3.10), definingit as the natural affections we hold for family and loved ones, the complicated presentation in book 1 suggests a redefinition of natural right in terms of such humane sentiments. These new ideas inform his new conception of judging as distinct from--indeed, as tempering--any Biblical or Aristotelian notions of moral judgment at the bar of a higher or transcendent truth. Montesquieu's jurisprudence and new judicial power accord with a basic natural right to individual security and tranquillity even as they moderate the Hobbesian and Lockean conceptions of natural right, with their emphasis upon force and necessity.
Montesquieu's four "laws of nature" elaborate these principles by defining man as a sentimental animal with a capacity for reason. Peace is "the first natural law"--in terms of historical appearance, it seems--since by nature each man in his timidity "feels himself inferior" and would hardly attack his fellows. Hobbes is explicitly criticized for projectingsuch a "complex" idea as desire for power and domination upon natural, prepolitical man (1.2, 235). The second law is "nourishment," and the third is man's natural sociability, understood as the "natural entreaty" which people "always make to [one] another" through a blend of our capacities for fear, pleasure, and sexual charm. Montesquieu then shifts from our definingcapacity for sentiment to our eventual drive for "knowledge," conceived of not as an end in itself but as another "bond" that other animals lack, making "the desire to live in society" the fourth natural law (236). This complex view of human nature informs his conceptions of politics and judging, since our natural passions or sentiments, which orient us toward peaceful, tranquil sociability, define us more fundamentally than our reason or any higher ambitions. We are neither as naturally sociable nor as naturally selfish as either Aristotle or Hobbes would have it, nor are we as radically historical or malleable as Rousseau later suggests. The genius of a moderate politics--of the spirit of laws properly conceived--is to grasp our nature in all its complexity and constitute laws and institutions that will preserve all its dimensions.
Montesquieu develops these numerous themes throughout the early books of The Spirit of the Laws, and in doingso turns from an initial concern with the structures and motivatingprinciples of different forms of government to a more fundamental concern with the distinction between moderate and immoderate governments (see 3.10; 8.8). Only in book 5, after exposingthe harshness of despotism but also proposingmeasures to moderate it, does he explicitly frame the essential problem of politics. Book 1 indicates that the human condition lies between divinity and brute matter, caught between the liberty of intelligence and the necessity of material existence. This middling condition is nowhere more evident than in the fact of despotism, for "despite men's love of liberty, despite their hatred of violence, most peoples are subjected to this type of government" (5.14, 297). This widespread problem and its underlying causes perpetually confront the political philosopher, the political founder, and the prudent reformer. He advises all three, or anyone with the genius to fuse these capacities, to work toward a quasi-Newtonian, moderate solution that is possible but difficult: "In order to form a moderate government, one must combine powers, regulate them, temper them, make them act; one must give one power a ballast, so to speak, to put it in a position to resist another; this is a masterwork of legislation that chance rarely produces and prudence is rarely allowed to produce" (5.14).
Early in the work, longbefore the core treatment of constitutionalism in books 11 and 12, Montesquieu provides this fundamental rationale for his new conceptions of the separation of powers and of judicial power. His political science argues that liberty can of itself achieve security only if our activities and passions are structured accordingto the dynamics prescribed by the laws of nature. Since our natural condition is not so low and desperate as Hobbes thinks, there is no need for the foundational contract and the absolute Leviathan. However, our natural condition is not so favored as either the Bible or Aristotle indicate, so there is no warrant for a moral orientation to politics and laws that would substantially restrict individual liberty. Man need face neither the fearsome judgment of an all-powerful Leviathan nor the troubling prospect of divine judgment or ethical censure. Nature indicates that politics must be structured in terms of multiple powers and perspectives that at once check and facilitate the free movement of political passions and energies. Montesquieu gradually develops his view of the separation of powers on this basis in The Spirit of the Laws, culminatingin the liberal constitutionalism promulgated in book 11 and the judicialized politics recommended there and in book 12. Nature and human nature indicate the need for independent, nonpartisan judging that secures the tranquillity of each individual's interior motions. The fundamental principles of Montesquieu's new science of politics require, therefore, a new jurisprudence. The outlines of that jurisprudence become clearer when compared with the liberal theory and traditional common-law reasoning of his predecessors, and upon examiningeven the earliest treatments of law and judging in The Spirit of the Laws.
Liberalism, Common Law, and Juridical Tranquillity
The Spirit of the Laws refers to numerous Western jurists and legal texts, ancient, medieval, and modern, and Montesquieu's political science has a distinctly juridical cast. Although he cites Hobbes only once, and Locke and the common-law jurist Coke not at all, Montesquieu's peculiar relation to both England and earlier liberalism raises the question of his relationship to such predecessors. Hobbes and Locke are the leadingliberal philosophers against whom Montesquieu either measured himself or now must be measured, and Coke embodies the classic common-law jurisprudence these theorists attacked. His conception of judging borrows much from classic common law, even though he shares some of the liberal criticisms of common-law prudence, and his published work never mentions such great expositors as Fortescue, Saint Ger-main, or Coke. This ambiguous relationship to earlier jurisprudence accords with the very character of Montesquieu's judicial power. A consideration of his originality in relation to his predecessors further reveals why the content of his new jurisprudence and judicial power requires such a subtle, complicated presentation.
A safe point of departure for sketchingthe liberal jurisprudential landscape Montesquieu inhabited is to note that Hobbes and Locke seek to construct a rationally sound, politically stable legal order on a new foundation, man's pre-political state of nature. For Hobbes, the necessities that define man's natural state are premises from which one derives further principles of civil society and governance. Locke's method is essentially identical, though more deftly presented. Their new foundation for a science of politics requires a sovereign power to constitute and govern civil society, but they disagree as to whether that foundation warrants, or requires, a separation within the sovereign. More to the point, judging is independent in neither of their accounts of the only rational, just political order. Locke follows Machiavelli's republican theory in separating and balancingforces so as to achieve security and prosperity in politics. He agrees with Hobbes, however, that judging must be under the sovereign, even if Locke would divide sovereignty into law-makingand law-enforcingpowers. The paradoxical explanation of this subordination of judging in both of these early liberal theorists is that judging, once conceived in light of man's prepolitical state of nature, somehow lies behind both legislating and executing. War is the natural human condition precisely because there is no effective judge to settle disputes. This is more evident in Locke than in Hobbes, for Locke makes judging the central metaphor of the state of nature: "[T]hose who have no such common Appeal, I mean on Earth, are still in the state of Nature, each being, where there is no other, Judge for himself, and Executioner." Hobbes, in contrast, simply subsumes judging under the establishment of that "common Power" which is the source of makingand executinglaw.
It is Locke's definition of "Political Society" that precipitates his break with Hobbes on the separation of powers, even as it transforms judging from a natural to a strictly positive power: "[T]here only is Political Society, where . . . all private judgment of every particular Member being excluded, the Community comes to be Umpire, by settled standing Rules, indifferent, and the same to all Parties." These teachings reflect and reinforce the liberal theory that there is no natural law in the ancient or medieval sense, no natural reason that discerns a morally substantive natural right. Hobbes concludes The Elements of Law by declaringthat "right reason is not existent," since there is no "such thingto be found or known in rerum natura." Locke, too, rejects premodern natural law, if more subtly, suggesting that we are "ignorant for want of study of it" and that it is "unwritten, and so nowhere to be found but in the minds of Men." He is more candid when statingthat nature in itself provides no practically meaningful guide for resolving conflict. Regardless of what natural justice means in the state of nature, men, once in society, "through Passion or Interest" will "mis-cite, or misapply it." Moreover, they "cannot so easily be convinced of their mistake where there is no established Judge." Locke's modern law of reason requires elaboration and, more definitively, enforcement. For liberal philosophy, it is man who posits all genuine law, and any particular positive law can appeal only to the posited legal order as a whole or to individually inhering natural rights. This constructed order, built on the solid ground of necessity, is amenable neither to premodern natural law nor to a traditional common-law understandingof custom and precedent. Only the natural rights of individuals are real and distinct, since their bases are the passions of an individual afraid to lose life, liberty, or property. The difficulty with this view of human nature and politics is that naturally apolitical people might not easily forfeit their rights in order to construct a positively bindingcontract on so shiftinga ground as their own interests.
The lesson Hobbes draws from the problematic authority or legitimacy of positive law is that sovereignty must not be divided, and the sovereign must be the final judge of all subjects. Of course, subordinate magistrates are necessary, but the sovereign stands over them as appellate judge, able to revise or reverse as needed. Locke's disagreement with Hobbes regarding the judging power stems not, then, from any influence of the common-law tradition but from the different conclusion he draws from his premises about the state of nature. Locke's doctrine of the separation of powers in effect turns the positivist conception of law and judging in Hobbes against the very idea of super-sovereignty. Hobbes addresses the problematic authority of posited law by settingup a person beyond judgment; for Locke, however, this is to think that "Men are so foolish that they care to avoid what Mischiefs may be done them by Pole-Cats, or Foxes, but are content, nay think it Safety, to be devoured by Lions." Locke prefers the polecats of the factional conflict entailed by a separation of powers, in which the legislature judges the executive and stands judged by it, while both powers and all the citizens supposedly can appeal to a neutral judge on earth. That is, the legislative power is "Supream," but one can appeal over it to the posited legal order as a whole, and Locke's rules for appeal are delineated in a strikingly tripartite form: political society is "bound to govern by establish'd standing Laws, promulgated and known to the people," by "indifferent and upright Judges, who are to decide Controversies by those Laws," and by an executive power which can be used only "in the Execution of such Laws."
Polecats and foxes, however, remain. Locke later formulates in the Second Treatise both an executive prerogative that occasionally transcends law to cope with necessity, and a right of revolution. As to prerogative, the people and legislature might agree with such action after the fact, but there is "no Judge on Earth" who can declare an instance of it right or wrong by a natural, reasonable standard. This by itself raises the prospect of revolution, in which "[t]he People shall be Judge" after all, but this puts everyone back in the state of nature. His criticism of Hobbes thus turns back upon his own account, since political stability and individual security rest on grounds potentially turbulent or less-than-civil. Hobbes and Locke never mention a separate judiciary because of the challenge such an independent source of judgment would pose to sovereignty. While Locke occasionally employs the language of tripartite powers, his judges could be independent of the sovereign only if they could appeal to something above the sovereign, if they could check the sovereign in an ultra-political way. These early liberal theorists deny that there is any such appeal, seeingonly the dangers to peace and security of appeals to divine law or divinely supported natural law. They deny that judging at law is ultimately based on nature or right reason, or that there is reasonableness in legal custom understood in a traditional, Scholastic sense. This is evident not only from their rejection of natural law but from their retention of only three of the four elements of Thomas Aquinas's definition of law. To Hobbes and Locke, law is for the common weal; it is promulgated; and it issues from the authorized power. Both philosophers drop precisely the fourth element, reason, which Aquinas lists first. The instrumental reason of modern natural right cannot appeal to an ultimate, natural reason--to somethingother than self-interested force or will--for even if such a thingexists, its primary manifestation is in the claimed rights of individuals. Such rights are what is being contested in political disputes, not what settles them. Locke implicitly admits that his laws of reason and self-preservation, which govern legislators and by which they are judged, are as prone to being miscited and misapplied as all the other laws of nature. Judges, just like legislators, would do so when gripped by their passions, and Locke clearly authorizes revolution against legislators. Independent judges, then, would be just other predators runningaround, and for Locke, two are enough for keepingeach other in line with the posited legal order. One is plenty for Hobbes.
Montesquieu departs in important ways from Hobbes and Locke, and these divergences are crucial both for his new constitutionalism and for the distinctive role that judging plays within it. The Spirit of the Laws suggests that the geometrically sound structures that Hobbes and Locke have built on their stateof-nature foundation in fact yield little tranquillity for individuals. Montesquieu thus applies Locke's criticism of Hobbes to Locke himself. If citizens fear their government and view politics with anxiety, who cares about the precise number or size of the predators? His own liberal solution appeals only weakly to natural reason or natural law, even though the opening book of The Spirit of the Laws seems to emphasize such an approach. Alternately, Montesquieu's conception of judging and constitutionalism does rest upon the low necessities of fear and tranquillity, although less exclusively and starkly than did the liberalism of his predecessors. Locke had begun the moderatingtrend, temperingthe stark sovereignty of Hobbes with reasonable customs for the many and reasonable thinkingfor the few. Montesquieu further argues that the very structure of politics can determine affairs safely, if constituted so that decisions are made both as necessity requires and in accord with a moderate, humane conception of natural right. His analysis of the separation of powers in the English constitution observes that the "three powers ought to form a repose," but since "by the necessary motion of things, they are constrained to move, they will be forced to move in concert" (11.6, 405). The crucial innovation is adding a third power, of a distinctly nonpredatory and more reasonable character, to provide the individual security that his liberal predecessors seek, without their constant worry about regression into war. A judicialized constitution builds the safety valve into the everyday system, in accord with the actual judicial practices and legal customs developed in many European countries through a "Gothic" common law and court system (see books 6, 12, and 28). This secures the liberal advantages of positivist legal theory more effectively than either super-sovereignty or an unstable cocktail of consent, revolution, faction, and prerogative. A crucial dimension of this innovative constitutionalism is that judges focus not upon "political law" or public law but "civil law," the criminal and civil law that directly affects individuals (1.3). Montesquieu's judges, even in his most developed account of constitutionalism in books 11 and 12, therefore lack a power of judicial review. His judicial power, informed by a moderate natural right, employs the advantages of premodern conceptions of judging without claimingthe traditional foundation in natural law or right reason.
Montesquieu's disagreement with Hobbes and Locke on judging does not cancel his debt regarding the orientation and structure of modern constitutionalism. His dissent from these predecessors as well as the monarchical or aristocratic character of his independent judging power together raise the question of the English common law that Hobbes so severely criticized for its Scholastic and Aristotelian provenance. Montesquieu's relationship to the classic common law is as ambiguous as his relation to these liberal philosophers, and for a similar reason. He takes from the common law what seems reasonable according to man's natural right to liberty and humane tranquillity, and excludes those elements deemed extreme for their threat to individual security and a moderate constitution. In this Montesquieu follows Bacon, who advanced a reformulated common law that would protect man's real interests and thereby complement-- and moderate--the realistic sovereign or state. In doing so, Bacon implied the deficiencies of the great expositor of traditional English common-law reasoning in his own era, Sir Edward Coke.
Classic common-law jurists such as Coke claimed that reason can refine immemorial custom and that judgments at law can reconcile the requirements of positive law with natural law or right reason. For Aristotle, justice requires both law and equitable judgment to interpret and apply the law in difficult cases, and laws based upon custom are more authoritative than written laws. The English common-law jurist and Lord Chancellor Sir John Fortescue (d. 1476) cites mainly the authority of Aristotle, as well as St. Thomas Aquinas, in his De laudibus legum Anglie (In Praise of the Laws of England, c. 1471). Fortes-cue instructs youngPrince Edward, in exile in France, on the superiority of England's common law and mixed constitution to France's civil law and absolute monarchy. J. G. A. Pocock's widely noted study of "the common law mind" and "the ancient constitution" in seventeenth-century England emphasizes the deeply historical, insular quality of Coke's thought, but Coke often blends Scholastic principle with historical particularity in his jurisprudence, both implicitly and explicitly. Even though the classic common law is not fond of abstractions or theories, its Aristotelian provenance helps in formulatingthe theory behind its reasoning. The common-law judge works from precedent cases and maxims to exercise a judgment informed by both particulars and generalities. Coke defined this judgment as an "artificial perfection of reason gotten by long studie, observation and experience," a reason "fined and refined by an infinite number of grave and learned men." Hobbes's Dialogue between a Philosopher and a Student of the Common Laws of England seeks to supplant the traditional explication of common law provided in Christopher Saint Germain's The Doctor and Student, or Dialogues between a Doctor of Divinity and a Student in the Laws of England. As such, it is the most thematic development of the Baconian strain permeatingHobbes's major works. Only a more rational, and less Christian and customary, conception of law and sovereignty, more scientific than the vague concepts of legal judgment or prudence, could achieve a more enlightened politics. Locke's critique of the common law is subtler, in part because it works largely by giving Coke the silent treatment, but the implications for common-law courts are evident in his theorizingand his constitutionalism.
Montesquieu's silence about the English common law is puzzling, given that he is a jurist who presents his liberal constitutionalism through an analysis of the English constitution, and that he places judging at the center of his political science of moderation. He never mentions the common law or its great jurists Bracton, Fortescue, Saint Germain, or Coke in The Spirit of the Laws,a work otherwise brimmingwith citations. Professional common-law judges all but disappear in the analyses of England in books 11 and 19. These omissions are curious, since he practically paraphrases Coke's description of common-law reasoningwhen praisingjuridical complexity in monarchies--which have "so many rules, restrictions, extensions, which multiply particular cases, and seem to make an art of reasoningitself" (6.1, 307). More curious still is the fact that Coke's life and jurisprudence combined to oppose absolute monarchy. This makes him a splendid example of the moderatingforce available in judges and "intermediate bodies," the embodiment of the complex, balanced constitutionalism Montesquieu propounds. Finally, while it is not clear what knowledge of English courts and jurisprudence he gained during his stay in England from 1729 to 1731--his travel journal was lost or destroyed--it is known that he later met and regularly corresponded with Charles Yorke, son of the then Lord Chancellor and later Chancellor himself. Montesquieu's notebooks contain important remarks on what he discussed with this "very celebrated barrister" about courts, law, and lawyers, apparently duringa visit by Yorke after publication of The Spirit of the Laws:
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.
Montesquieu departs from the classic common law because of his moderately liberal notions of nature and human nature, which in turn inform his distinctive jurisprudence and constitutionalism. His humane, softer conceptions of moderation and natural right directly guide his new versions of constitutionalism, jurisprudence, and judging. Nonetheless, his serious investigation of nature as the basis for understandingpeople and politics distinguishes him from later liberal political philosophers, certainly from the recent liberal theory of Rawls and Dworkin. This orientation by nature explains the fundamental importance of constitutionalism and the separation of powers in his liberalism, and it precludes the possibility that his project to elevate judicial power sought to have it replace the others. For Montesquieu, the idea that any power, even judging, could rule absolutely does not square with our nature.
Similarly, his new conception of moderation marries institutional with moral aims. The moderatingof moral and political expectations in this new jurisprudence is evident in his advice for reform about suicide, which English common law flatly condemned. In climates that dispose men toward such remedies for their personal ills, the laws should stop moralizingand simply leave people alone (14.12-13). While Coke and his predecessors employ an Aristotelian practical science, Montesquieu originates the efforts by modern social science to achieve a neutral, objective understandingof any particular phenomena, even if only of its contextual meaningand social import. On the basis of his liberal conception of human nature, Montesquieu would use the moderatinginfluences of independent judgingand juridical complexity to secure both individual tranquillity and a peaceful sociability. The natural desire, and right, to tranquillity requires a judging power attuned to our sentiments and attachments, paring from the law any frightful implications of a legal prudence informed by classical and medieval moral philosophy. Montesquieu's distinctive conception of the judging power is both a standard for and quiet engine of his transition from the theory and practice of both ancient and early modern politics to his more complex, moderate liberalism.
The Moderation of Monarchy and a Judicial Depository of the Laws
A fundamental concern of The Spirit of the Laws is that political extremes had often dominated the great European powers during the seventeenth and eighteenth centuries--from the republican absolutism of Cromwell that Montesquieu saw just beneath the surface in England to the monarchical absolutism of the French Bourbons. One of Montesquieu's favored models for restoringa moderate constitutional politics in Europe was France's parlements, the regional bodies of nobles who exercised judicial and administrative functions even after feudalism ended. He knew their strengths and weaknesses intimately, and thought their independence and legal prudence could check either the populist extreme within republicanism or the autocratic extreme within monarchy. To Montesquieu, these extremes tended to reinforce each other, swinging the scale of authority from one lopsided position to the other, while the independent, moderatingrole of courts and a legal profession were mostly overlooked.
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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Table of Contents
Notes on Texts
Introduction: The Subtle Judge and Moderate Liberalism
Part One: Montesquieu's Jurisprudence and New Judicial Power
1 Moderation Liberalism and Common Law: Spirt and Judicial Government
2 Moderate and Juridical Government: The Spirit of Constitutional Liberty
3 Projects for Reform: Due Process, National Spirit, and Liberal Toleration
4 The New Aristocracy of the Robe: History, Reason, and Judicial Prudence
Part Two: Blackstone and the Montesquieuan Constitution
5 Blackstone's Liberal Education for Law and Politics
6 A Gothic and Liberal Constitution: Blackstone's Tempting of Sovereignty
7 Blackstone, Lord Mansfield, and Common-Law Liberalism
Part Three: Montesquieu's Judicial Legacy in America
8 Hamilton's Common-Law Constitutionalism and Judicial Prudence
9 Tocqueville's Judicial Statesmanship
10 Holmes and Judicialized Liberalism
Conclusion: The Cloaking of Power and the Perpetuation of Constitutionalism