Abstract

This dissertation argues that the independence of judging in The Spirit of the Laws is Montesquieu's contribution to separation of powers and liberal constitutionalism. By transforming existing conceptions of judging, and through influence on later thinkers and statesmen, Montesquieu cloaked his reform of constitutionalism in the robes of an invisibly powerful judiciary. ;Montesquieu is one source of the juridical bent to politics in today's liberal democracies. His links to America's judiciary include Blackstone and Hamilton, who learned from him of a spirit of "moderation" which blends popular rule with quiet reform by judges and lawyers. This conception is obscured in Spirit of the Laws, since judging must remain "invisible" and seemingly "null" if it is to temper faction and protect individuals. Still, Montesquieu states that "the masterwork of legislation is to know how to place well the power of judging," that knowledge of "the surest rules one can observe in criminal judgments, concerns mankind more than anything else in the world," and, "it is only on the practice of this knowledge that liberty can be founded." ;Part One examines spirit, law, judging, and moderation in Spirit of the Laws. The early Books praise monarchy and critique republicanism by emphasizing a judicial 'depository' of moderation, law, and individual security. In Book XI judging is the key to moderate politics and separation of powers. Montesquieu is compared to Hobbes, Locke, and Coke on these points. ;Part Two examines Montesquieu's educating of a new breed of lawyers and judges in a new conception of prudence. Later portions of Spirit of the Laws instruct in reform of criminal law, toleration as to morals and religion, and a new historical jurisprudence. ;The Conclusion examines adaptations by Blackstone, Hamilton, and Tocqueville of this cloaking of power, and its legacy. Since Montesquieuan judging emphasizes individual security and politicizes judges, the question of its viability or perpetuation arises. Still, Montesquieu's endorsement of constitutionalism, rational inquiry, and natural right are recommended to today's political science, jurisprudence, and constitutionalism