As Freedom Advances: The Paradox of Severity in American Criminal Justice

According to the Enlightenment philosopher Montesquieu, as freedom advances, the severity of the penal law decreases. \u27 Montesquieu\u27s notion is in the United States Constitution\u27s Eighth Amendment, a provision that reflects a Montesquieuan faith that punishments acceptable today will become cruel and unusual tomorrow. Yet the United States in the year 2000 presents a serious challenge to Montesquieu\u27s notion of the progress of freedom. The United States is simultaneously a leader of the free world and of the incarcerated world. We celebrate and export our commitment to free markets, civil rights, and civil liberties, yet we are also a world leader in incarceration and the death penalty. The last thirty years have seen an unprecedented increase in incarceration in the United States, and the number of persons executed each year has climbed steadily since the Supreme Court resurrected the death penalty in 1976. In our treatment of crime, we could not be more different from other free countries with which we generally associate ourselves. What explains this paradox? Was Montesquieu wrong? This essay examines the uneasy coincidence of freedom and severity in American criminal justice

Federalism at the Crossorads: Old Meanings, New Significance

Federalism has remained a contested concept. The constitutional certainties of the modern federal state are under attack from confederal practices of negotiated agreement. Such practices have their traditional roots in the political theories of Althusius and Montesquieu. The central argument of this article is that the American Federalists broke with that older tradition and deliberately misinterpreted Montesquieu along the way. Consequently, the predominant reading of federalism emphasizes federal supremacy over the idea of a social compact among equal partners, territorial representation dominates over the recognition of social community, and the allocation of divided powers is guided by national prerogatives rather than regionally differentiated policy needs. Recent trends towards a more collaborative form of federalism indicate that the old model of constitutional federalism may be replaced by new practices of treaty federalism

Montesquieu a pénzről, az árfolyamokról és az államadósságról

Montesquieu, Charles-Louis de Secondat (1689-1755) A törvények szelleméről című híres művében néhány fejezetet szentelt a pénz szerepének. E tanulmány rekonstruálni igyekszik Montesquieu nézetrendszerét a pénzről, az árakról, a pénzkínálat és az árak összefüggéséről, a kereskedelemi mérlegek és a (váltó)árfolyam kapcsolatáról, az államadósságról. Montesquieu a korabeli vitákban azok oldalán állt, akik az állam eladósodottságának mértékét veszélyesnek tartották. Több tervezetet, "pénzügyi trükköt" is kidolgozott arról, hogy az állam hogyan szabadulhatna meg az évtizedek alatt felhalmozódott adósságától. David Hume-mal váltott levelei mindkettőjük álláspontját segítik tisztázni

Beyond Virtue And Honour: Montesquieu And The Problem Of England In The spirit Of The Laws

This thesis attempts to resolve the problematic nature of Montesquieu\u27s analysis of the English constitution. It is argued that in the Spirit of the Laws Montesquieu presents England as a mixed regime composed of republican and monarchical elements. Further, England is able to protect the liberty of its citizens from unwarranted intrusions into their private lives by governments, and permits them to pursue a natural desire for commercial activity. England is able to avoid corruption, or at least the effects of corruption, by limiting government power, and by nurturing the interests of the citizens in participating in politics. Hence liberty and commerce in England do not or did not at that time lead to excessive individualism.;Our examination of Montesquieu\u27s analysis of the English mixed regime will look at what he meant by \u27natural\u27 government, that is, a regime which permitted individuals to fulfill their nature without presupposing standards of behaviour. Second, it will look at what Montesquieu means by republican and monarchical governments (their nature and principle); why they fail to avoid corruption, and which of their features will be combined in the English mixed regime. Third, we will consider how these elements are to be mixed, and what the connection between mixed regimes, commerce and liberty is. Finally, England\u27s constitution will be looked at, both in terms of its ability to provide liberty in its constitution and liberty for the citizen.;This thesis will be prefaced by a discussion of some of Montesquieu\u27s early writings, which demonstrates the affinity of Montesquieu\u27s later ideas with those of his youth. It is here that we will examine Montesquieu\u27s understanding of politics and political activity, which will provide a recurring point of reference to the remainder of the essay. It is argued that Montesquieu\u27s understanding of politics and political activity was profoundly influenced by the writings of Cicero. Finally, it is this Ciceronianism inherent in Montesquieu\u27s thought which will provide the continuity of his ideas, and enable us to better understand the development of ideas in the eighteenth century. It is Ciceronian politics, not the paradigm of manners, that provides (at least in Montesquieu\u27s case) for the transition from the pursuit of classical virtue to the acceptance of modern commerce in the eighteenth century

Country Size and the Rule of Law: Resuscitating Montesquieu

The political and economic impact of country size has been a frequently discussed issue in social science. In accordance with the general hypothesis of Montesquieu, this paper demonstrates that there is a robust negative relationship between the size of country territory and a measure of the rule of law for a large cross-section of countries. We propose that there are two main reasons for this regularity; firstly that institutional quality often has the character of a local public good that is imperfectly spread across space from the capital to the hinterland, and secondly that a large territory usually is accompanied by valuable rents that tend to distort property rights institutions. Our empirical analysis further shows that whether the capital is centrally or peripherally located within the country matters for the average level of rule of law.country size, rule of law, institutions, development, Montesquieu

The Surprising Views of Montesquieu and Tocqueville about Juries: Juries Empower Judges

Both Montesquieu and Tocqueville thought that an independent judiciary was key to maintaining a moderate government of ordered liberty. But judicial power should not be exercised too openly, or the people would view judges as tyrannical. In Montesquieu\u27s and Tocqueville\u27s view, the jury was an excellent mask for the power of judges. Both Montesquieu and Tocqueville thought that popular juries had many weaknesses in deciding cases. But, as Tocqueville made clear, the firm guidance of the judge in instructions on law and comments on evidence could prevent juries from going astray and make the institution a free school for democracy. The Article explores Montesquieu\u27s legacy concerning judges and juries in the arguments of both the Federalists and the Anti-Federalists. It also examines the American antecedents of Tocqueville\u27s idea of the jury as a school for democracy

Generalized Trust in Taiwan and (as Evidence for) Hirschman’s doux commerce Thesis

Data from the World Values Survey shows that generalized trust in Mainland China—trust in out-group members—is very low, but generalized trust in Taiwan is much higher. The present article argues that positive interactions with out-group members in the context of Taiwan’s export-oriented economy fostered generalized trust—and so explains this difference. This line of argument provides evidence for Albert O. Hirschman’s doux commerce thesis, that market interaction can improve persons and even stabilize the social order. The present article defends this point by separating two theses that Hirschman combines under that label, a countervailing forces thesis and a doux commerce thesis narrowly understood. These theses offer different explanations (or mechanisms) for how commerce could have those positive effects. The data about Taiwanese trust practices provides evidence for the latter

Republicanism and Markets

The republican tradition has long been ambivalent about markets and commercial society more generally: from the contrasting positions of Rousseau and Smith in the eighteenth century to recent neorepublican debates about capitalism, republicans have staked out diverse positions on fundamental issues of political economy. Rather than offering a systematic historical survey of these discussions, this chapter will instead focus on the leading neo-republican theory—that of Philip Pettit—and consider its implications for market society. As I will argue, Pettit’s theory is even friendlier to markets than most have believed: far from condemning commercial society, his theory recognizes that competitive markets and their institutional preconditions are an alternative means to limit arbitrary power across the domestic, economic, and even political spheres. While most republican theorists have focused on political means to limit such power—including both constitutional means (e.g., separation of powers, judicial review, the rule of law, federalism) and participatory ones (democratic elections and oversight)—I will examine here an economic model of republicanism that can complement, substitute for, and at times displace the standard political model. Whether we look at spousal markets, labor markets, or residential markets within federal systems, state policies that heighten competition among their participants and resource exit from abusive relationships within them can advance freedom as non-domination as effectively or even more effectively than social-democratic approaches that have recently gained enthusiasts among republicans. These conclusions suggest that democracy, be it social or political, is just one means among others for restraining arbitrary power and is consequently less central to (certain versions of) republicanism than we may have expected. So long as they counteract domination, economic inroads into notionally democratic territory are no more worrisome than constitutional ones

"Meaning" as a sociological concept: A review of the modeling, mapping, and simulation of the communication of knowledge and meaning

The development of discursive knowledge presumes the communication of meaning as analytically different from the communication of information. Knowledge can then be considered as a meaning which makes a difference. Whereas the communication of information is studied in the information sciences and scientometrics, the communication of meaning has been central to Luhmann's attempts to make the theory of autopoiesis relevant for sociology. Analytical techniques such as semantic maps and the simulation of anticipatory systems enable us to operationalize the distinctions which Luhmann proposed as relevant to the elaboration of Husserl's "horizons of meaning" in empirical research: interactions among communications, the organization of meaning in instantiations, and the self-organization of interhuman communication in terms of symbolically generalized media such as truth, love, and power. Horizons of meaning, however, remain uncertain orders of expectations, and one should caution against reification from the meta-biological perspective of systems theory