标题:
Law and Politics: Montesquieu and the 4 Schools of Legal Theory
作者:
Jan-Erik Lane
关键词:
Montesquieu, Natural Law, Legal Positivism, Legal Realism, Legal Pragmatism
期刊名称:
Open Access Library Journal,
Vol.4 No.11,
November
28,
2017
摘要: The theory of separation of powers in the state by Montesquieu (1748) is the longest serving theory in real politics, maintaining its relevance for more than 200 hundred years. Most constitutions in written form follow his paradigm, at least from a formal point of view. Constitutional democracies certainly apply or enforce Montesquieu’s ideal-type for rule of law and political stability. How does this great political theory fit with the major schools in jurisprudence about what is law and the role of judges in adjudication? This question has never been raised, but it is as essential to Montesquieu’s paradigm as the changing relations between executive and legislature in for instance parliamentarism and presidentialism.