the cloaking of power montesquieu blackstone and the rise of judicial activism

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The Cloaking Of Power

Author : Paul O. Carrese
ISBN : 0226094839
Genre : Law
File Size : 60. 53 MB
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How did the US judiciary become so powerful—powerful enough that state and federal judges once vied to decide a presidential election? What does this prominence mean for the law, constitutionalism, and liberal democracy? In The Cloaking of Power, Paul O. Carrese provides a provocative 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 strong but subtle courts. Montesquieu instructed statesmen to “cloak power” by placing judges at the center of politics, while concealing them behind juries and subtle reforms. Tracing this conception 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.

Interpretation Of Law In The Age Of Enlightenment

Author : Yasutomo Morigiwa
ISBN : 9400715064
Genre : Philosophy
File Size : 84. 6 MB
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A collaboration of leading historians of European law and philosophers of law and politics identifying and explaining the practice of interpretation of law in the 18th century. The goal: establishing the actual practice in the Age of Enlightenment, and explaining why this was the case. The ideology of the Age was that law, i.e., the will of the sovereign, can be explicitly and appropriately stated, thus making interpretation redundant. However, the reality was that in the 18th century, there was no one leading source of national law that would be the object of interpretation. Instead, there was a plurality of sources of law: the Roman Law, local customary law, and the royal ordinance. However, in deciding a case in a court of law, the law must speak with one voice. Hence, interpretation to unify the norms was inevitable. What was the process? What role did justification in terms of reason, the hallmark of the Enlightenment, play? These are some of the questions addressed.

Constitutionalism Executive Power And The Spirit Of Moderation

Author : Giorgi Areshidze
ISBN : 9781438460437
Genre : LAW
File Size : 49. 29 MB
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Leading scholars and legal practitioners explore constitutional, legal, and philosophical topics. In Constitutionalism, Executive Power, and the Spirit of Moderation, contributors ranging from scholars to practitioners in the federal executive and judicial branches blend philosophical and political modes of analysis to examine a variety of constitutional, legal, and philosophical topics. Part 1, “The Role of Courts in Constitutional Democracy,” analyzes the proper functions and limits of the judiciary and judicial decision making in constitutional government. Part 2, “Law and Executive Authority,” reflects on the tensions between constitutionalism and presidential leadership in both domestic and international arenas. Part 3, “Liberal Education, Constitutionalism, and Philosophic Moderation,” shifts the focus to the relationship between constitutionalism and political philosophy, and especially to the modern modes of philosophy that most directly influenced the American Founders. A valuable resource for specialists, the book also will be of use in political science and law school classes.

The Oxford Edition Of Blackstone S Commentaries On The Laws Of England

Author : William Blackstone
ISBN : 9780191077593
Genre : Law
File Size : 47. 58 MB
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Oxford's variorum edition of William Blackstone's seminal treatise on the common law of England and Wales offers the definitive account of the Commentaries' development in a modern format. For the first time it is possible to trace the evolution of English law and Blackstone's thought through the eight editions of Blackstone's lifetime, and the authorial corrections of the posthumous ninth edition. Introductions by the general editor and the volume editors set the Commentaries in their historical context, examining Blackstone's distinctive view of the common law, and editorial notes throughout the four volumes assist the modern reader in understanding this key text in the Anglo-American common law tradition. Book I: Of the Rights of Persons covers the key topics of constitutional and public law. Blackstone's inaugural lecture 'On the Study of the Law' introduces a series of general essays on the nature of law, including a chapter on 'The Absolute Rights of Individuals' . This is followed by an extended account of England's political constitution. The various categories of people or subjects are then surveyed, with special attention to the rights and obligations of masters and servants, husbands and wives, parents and children, and lastly 'artificial persons', or corporations. In addition to David Lemmings' introduction to the volume, Book I includes an introduction from the General Editor Wilfrid Prest.

Cba Record

Author :
ISBN : STANFORD:36105063863901
Genre : Bar associations
File Size : 89. 36 MB
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Encyclopedia Of Law And Society

Author : David S. Clark
ISBN : 076192387X
Genre : Social Science
File Size : 73. 34 MB
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The Encyclopedia of Law and Society is the largest comprehensive and international treatment of the law and society field. With an Advisory Board of 62 members from 20 countries and six continents, the three volumes of this state-of-the-art resource represent interdisciplinary perspectives on law from sociology, criminology, cultural anthropology, political science, social psychology, and economics. By globalizing the Encyclopedia's coverage, American and international law and society will be better understood within its historical and comparative context.

Denver University Law Review

Author :
ISBN : UCAL:B5075978
Genre : Law
File Size : 59. 50 MB
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The Constitution Of Judicial Power

Author : Sotirios A. Barber
ISBN : UOM:39015026804511
Genre : Law
File Size : 35. 92 MB
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Barber shows that New Right theorists, such as Bork, and establishment liberals, such as Ronald Dworkin, are moral relativists who cannot escape conclusions ("might makes right," for example) that could destroy constitutionalism in America. The best hope for American freedoms, Barber argues, is to revive classical constitutionalism - and he explains how new movements in philosophy today allow the Court's friends to do just that. Written in a lively and engaging style.

Judicial Activism

Author : Christopher Wolfe
ISBN : 0847685314
Genre : Law
File Size : 39. 75 MB
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In this revised and updated edition of a classic text, one of America's leading constitutional theorists presents a brief but well-balanced history of judicial review and summarizes the arguments both for and against judicial activism within the context of American democracy. Christopher Wolfe demonstrates how modern courts have used their power to create new "rights" with fateful political consequences and he challenges popular opinions held by many contemporary legal scholars. This is important reading for anyone interested in the role of the judiciary within American politics. Praise for the first edition of Judicial Activism: "This is a splendid contribution to the literature, integrating for the first time between two covers an extensive debate, honestly and dispassionately presented, on the role of courts in American policy. Stanley C. Brubaker, Colgate University"

Law Politics And Society

Author : Suzanne Samuels
ISBN : 0618376518
Genre : Education
File Size : 50. 78 MB
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This text studies the inextricable links between law, society, and politics through an in-depth examination of the institutions for law-making in the United States, focusing on the function, structure, and participants in the process. The institutions-oriented approach focuses on contemporary coverage of the interrelationship between law and society, and includes discussion of controversial topics, such as the influence of race, class, gender, and corporate governance on the law. Law, Politics, and Society also looks at the theoretical and philosophical foundations of American law and provides comparative and international perspectives. Diversity is embedded into each chapter within the readings—drawn from a broad range of interdisciplinary sources such as sociology, history, and medicine—as well as in activities, which encourage discussion about law and race, national origin, gender, and class. In addition, excellent coverage of how the law has changed since September 11, 2001 helps students understand these complex relationships in a tangible way. Popular Culture features use a series of photographs to help students understand how law both informs and is informed by popular culture. Law in Action features apply the concepts of each chapter to an actual law in order to illustrate the central point and to help students better understand theoretical concepts.

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