The author discusses
Montesquieu’s image of the judge, an iconic figure in le-
gal theory and legal philosophy, in light of his doctrine of the separation of
powers as presented in The Spirit of the Laws. Montesquieu’s discussion ap-
pears somewhat incoherent: he sees law as an important social apparatus, yet
simultaneously rejects a stable judicial
institution to adapt
the legal system
to a given social reality. He even defines the separation of judicial
power from executive power as a criterion
for determining moderate regimes, yet perceives judicial power
as void. This incoherence arises
from the epistemology of natu- ral law,
which rejects creativity in favour of discovery of laws. Montesquieu’s image of the judge fits perfectly
with the 19th century ideology of codification, which idealises the completeness and clarity of a code of laws.
Montesquieu’s rigidly constructed doctrine of separation of powers can
justify his anaemic judge only outside
the real circumstances of judicial decision-making, for law is created by
a judge, not discovered.
Key words: Montesquieu, separation of powers, law, judicial power,
legislative power.