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Kritarchy

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For other uses, see Judicial activism.

Kritarchy, also called kritocracy, was the system of rule by Biblical judges (שופטים, shoftim) in ancient Israel, started by Moses according to the Book of Exodus,[1] before the establishment of a united monarchy under Saul.[2][3]

Because the name is a compound of the Greek words κριτής, krites ("judge") and ἄρχω, árkhō ("to rule"),[4] its colloquial use has expanded to cover rule by judges in the modern sense as well. To contrast such a rule by (modern) judges with the actual form of the 1996 Constitution of the Republic of South Africa, judge Albie Sachs coined the term dikastocracy for it, from δικαστής ("judge"), rejecting the coinage juristocracy[5] for being an admixture of Latin and Greek.[6] The word jurocracy has also been used by others.[7]

Definitions

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Contrast to extant system

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Stanley Reed
Albie Sachs

Sachs and others rejected the idea that the Constitutional Court of South Africa, on which he sat, was a dikastocracy; using the name to denote what they asserted the Court not to be.[8] It was used in a 1996 Court opinion that rejected the "horizontal" application (between citizens as opposed to "vertical" application between citizens and the government) of the RSA constitution's Bill of Rights and warned that "horizontal" application would turn the republic into such a dikastocracy.[9]

Others have similarly used this as an inverse definition to denote what they assert their form of government is not. Supreme Court of the United States justice Stanley Forman Reed, the last dissenter to be convinced in the decision on Brown v. Board of Education used kritarchy as the name for the judicial activism that he initially dissented from, asking his clerk (John Fassett) who argued with the direction to write a dissenting opinion whether he (Fassett) favoured a kritarchy.[10][11] Fassett was unfamiliar with the word, and Reed told him to look it up.[10][11] Fassett could not find it in several dictionaries, finally locating it in the Oxford English Dictionary.[10][11]

The actual term that Reed used was "krytocracy" and he described it as a "government by judges."[12]

According to van Notten

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This form of rule (in the non-Biblical sense) is the case of Somalia, ruled by judges with the polycentric legal tradition of xeer.[13][14][15] The definition employed by Michael van Notten (based upon one by Frank van Dun[16]) is not, strictly, that of rule by judges, judges not being a formal political class but rather people selected at random to perform that task ad hoc; but rather is that of a legal and political system whose closest analogue in other societies is that of a system based entirely upon customary rather than statutory law.[17] Ayittey referred to this as a "near-Kritarchy".[18] Van Notten himself argues that with few exceptions, the system of government which he denotes a kritarchy is "harmonious with the concept of natural law" and "very close to what in philosophy might be called 'the natural order of human beings'".[17]

Heterodox opinions

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In the opinion of libertarian anthropologist Spencer McCallum, the kritarchy represents the governance of stateless societies,[19] explaining that Somali tribal governments were made up of courts and part-time police.[20]

Potential kritarchies

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Redwood Castle, County Tipperary, although built by the Normans, was later occupied by the MacEgan juristic family and served as a school of Irish law under them.

Many legal scholars and commentators have spoken of the potential for systems to move to a form of kritarchy, viewing such in a negative light.[21] A specific example is the Constitution of the Philippines which allows for direct rule by the Supreme Court should the Executive commit a "grave abuse", which is not defined in law.[22]

Historical examples

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The Judicates (Sardinian: Judicadus) of Sardinia.

Ireland had a system of kritarchy from the 5th century BCE to the 5th century CE under the Brehon Law, the Brehons being the class of judges keeping an oral tradition of secular law from pre-Christian Ireland.[23][24][4] A kritarchy system was also present in medieval Ireland until the 13th century.[25][4]

The Icelandic Commonwealth between the 9th and 13th century has been labelled as a kritarchy by David D. Friedman and Einar Olgeirsson.[26][27]

The Sardinian medieval kingdoms, also called the Judicates, from the 10th to 14th centuries.[28]

Frisia, at the end of the Frisian freedom, in the 16th century had a system of kritarchy.[29][4]

Islamic Courts Union from 1994 to 2006 in Somalia, following the legal system of xeer.[30]

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References

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  1. ^ Exodus 18:13–26
  2. ^ Zettler 1978, p. 84.
  3. ^ Hellweg 1993, p. 71.
  4. ^ a b c d Ayittey 2006, pp. 305.
  5. ^ Hirschl 2007.
  6. ^ Cornell & van Marle 2014, p. 90.
  7. ^ Martin 2005, p. xviii.
  8. ^ Bizos 2011, pp. 905–906.
  9. ^ Jeffery 2010, p. 49.
  10. ^ a b c Roberts & Stratton Jr. 1997, p. 43.
  11. ^ a b c SCOTUS 1980, p. 38.
  12. ^ Fassett, John (Summer 2004). "Supreme Court Law Clerks' Recollections of Brown v. Board of Education". St. John's Law Review. 78 (3): 528. Retrieved 12 December 2023.
  13. ^ MacCallum 1998.
  14. ^ Makutchev 2020.
  15. ^ van Notten 2003.
  16. ^ van Notten 2005, p. 73.
  17. ^ a b Tobin 2014, p. 73.
  18. ^ Ayittey 2006, pp. 120–123.
  19. ^ MacCallum (1998): "A society organized strictly in accordance with the Xeer is technically a “kritarchy,” as opposed to a democracy, theocracy, monarchy, oligarchy, or other form of political government. The term, a little-used nineteenth-century word compounded from the Greek, literally means “rule by judges.” Many stateless societies have been kritarchies, including the well-known example of the Old Testament Jews during the time of the Judges. The proposed free enclaves also would be kritarchies, since they would be founded solely on the principles of successful modern commerce and the traditional Xeer."
  20. ^ MacCallum (1998): "But tribal government remained the government of choice for Somalis. According to my friends, this indigenous government, composed of part-time police and law courts, had been effective during the past seven years in keeping the peace in the rural areas."
  21. ^ Radlett & Radlett (2012); Hatzistergos (2009); Morissette (1998); Weinstein (2004), p. 101–102.
  22. ^ Orosa 2004.
  23. ^ Gorman 1913.
  24. ^ IC 2017.
  25. ^ van Notten 2005, p. 187–196.
  26. ^ Friedman 1979, p. 399–415.
  27. ^ Olgeirsson 1971, p. 44.
  28. ^ Solmi 1965.
  29. ^ van Notten 2005, p. 187-196.
  30. ^ Harvard Divinity School 2016.
  31. ^ Molcher (2017); Olson (2020); 2000 AD #2118; 2000 AD #1744

Reference bibliography

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