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Kritarchy Source: en.wikipedia.org/wiki/Kritarchy

Kritarchy, also called kritocracy, was the system of rule by Biblical judges (Hebrew: 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" for being an admixture of Latin and Greek.[5]

Definitions[edit]

Contrast to extant system[edit]

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.[6] 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.[7]

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.[8][9] Fassett was unfamiliar with the word, and Reed told him to look it up.[8][9] Fassett could not find it in several dictionaries, finally locating it in the Oxford English Dictionary.[8][9]

According to van Notten[edit]

This form of rule (in the non-Biblical sense) is the case of Somalia, ruled by judges with the polycentric legal tradition of xeer.[10][11][12] The definition employed by Michael van Notten (based upon one by Frank van Dun[13]) 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.[14] Ayittey referred to this as a "near-Kritarchy".[15] 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'".[14]

Potential kritarchies[edit]

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.[16][17] 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.[18]

Historic examples[edit]

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 Druid Judges.[19][20][4] A kritarchy system was also present in medieval Ireland until the 13th century.[21][4]

The Icelandic Commonwealth between the 9th and 13th century has been labelled as a kritarchy by David D. Friedman and Einar Olgeirsson.[22][23]

The Sardinian medieval kingdoms, also called the Judicates, from the 10th to 14th centuries.[24]

Frisia, at the end of the Frisian freedom, in the 16th century had a system of kritarchy.[21][4]

Islamic Courts Union from 1994 to 2006 in Somalia, following the legal system of xeer.[25]

References[edit]

Cross-reference[edit]

  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. ^ Cornell & van Marle 2014, p. 90.
  6. ^ Bizos 2011, pp. 905–906.
  7. ^ Jeffery 2010, p. 49.
  8. ^ a b c Roberts & Stratton Jr. 1997, p. 43.
  9. ^ a b c SCOTUS 1980, p. 38.
  10. ^ MacCallum 1998.
  11. ^ Makutchev 2020.
  12. ^ van Notten 2003.
  13. ^ van Notten 2005, p. 73.
  14. ^ a b Tobin 2014, p. 73.
  15. ^ Ayittey 2006, pp. 120–123.
  16. ^ Radlett 2012.
  17. ^ Hatzistergos 2009.
  18. ^ Orosa 2004.
  19. ^ Gorman 1913.
  20. ^ IC 2017.
  21. ^ a b van Notten 2005, p. 187-196.
  22. ^ Friedman 1979, p. 399-415.
  23. ^ Olgeirsson 1971, p. 44.
  24. ^ Solmi 1965.
  25. ^ Harvard 2016.

Reference bibliography[edit]

  • Ayittey, George (2006). Indigenous African Institutions: 2nd Edition (2nd ed.). BRILL. ISBN 9789047440031.
  • Bizos, George (2011). Odyssey to Freedom. Penguin Random House South Africa. ISBN 9781415203071.
  • Cornell, Drucilla; van Marle, Karin (2014). Albie Sachs and Transformation in South Africa. CRC Press. ISBN 9781317819585.
  • Friedman, David D. (March 1979). "Private creation and eforcement of law: a historical case". Journal of Legal Studies: 399–415. Retrieved 12 February 2017.
  • Gorman, M.J. (February 1913). "University of Pennsylvania Law Review". Retrieved 12 February 2017.
  • Harvard (2016). "The Islamic Courts Union". Harvard Divinity School. Archived from the original on 30 July 2020. Retrieved 30 September 2020.
  • Hatzistergos, John (July 2009). "A charter of rights or a charter of wrongs?". Original Law Review. Sandstone Academic Press. 5 (3): 85. Retrieved 1 October 2021.
  • Hellweg, Paul (1993). "kritarchy". The Wordsworth Book of Intriguing Words. Wordsworth reference. Wordsworth. ISBN 9781853263125.
  • "Ireland's Brehon Laws were way ahead of their time". IrishCentral. 14 July 2016. Archived from the original on 13 February 2017. Retrieved 12 February 2017.
  • Jeffery, Anthea (2010). Chasing the rainbow: South Africa's move from Mandela to Zuma. South African Institute of Race Relations. ISBN 9781869825829.
  • MacCallum, Spencer Heath (1998-06-01). "A Peaceful Ferment in Somalia". The Freeman. Foundation for Economic Education.
  • Makutchev, Alexander V. (2020). "Kritarchy as a special form of state (on the example of Somalia)". Juridical Journal of Samara University. 6 (4): 17–25. doi:10.18287/2542-047X-2020-6-4-17-25. Retrieved 27 September 2021.
  • Molcher, Michael (10 March 2017). "The politics of Judge Dredd". politics.co.uk. Retrieved 16 June 2020.
  • Olgeirsson, Einar (1971). Från ättegemenskap till klasstat. Translated by Johnson, Cilla. Stockholm: Pan.
  • Orosa, Theoben Jerdan C. (2004). "Constitutional Kritarchy Under the Grave Abuse Clause". 49 (2). Retrieved 27 September 2021. {{cite journal}}: Cite journal requires |journal= (help)
  • Radlett, Susan; Radlett, David (17 September 2012). "A response to the Commission on a Bill of Rights Second Consultation" (PDF). Retrieved 27 September 2021.
  • Roberts, Paul Craig; Stratton Jr., Lawrence M. (1997). The New Color Line: How Quotas and Privilege Destroy Democracy. Regnery Publishing. ISBN 9780895264237.
  • Solmi, A. (1965). Studi storici sulle istituzioni della Sardegna nel Medioevo [Historical studies on Sardinian institutions in the Middle Ages] (in Italian). Cagliari.
  • "In Memoriam, Honorable Stanley Forman Reed". Proceedings of the Bar and Officers of the Supreme Court of the United States. Supreme Court of the United States. 1980.
  • Tobin, Brendan (2014). Indigenous Peoples, Customary Law and Human Rights — Why Living Law Matters. Routledge Studies in Law and Sustainable Development. Routledge. ISBN 9781317697541.
  • van Notten, Michael (2003). "From Nation-State to Stateless Nation: The Somali Experience". Africa: Rivista trimestrale di studi e documentazione dell'Istituto italiano per l'Africa e l'Oriente. Istituto Italiano per l'Africa e l'Oriente. 58 (2): 147–157. JSTOR 40761688. Retrieved 27 September 2021.
  • van Notten, Michael (2005). "Appendix: What is Kritarchy? (Frank van Dun)". In MacCallum, Spencer Heath (ed.). The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa. Red Sea Press. ISBN 9781569022504. LCCN 2005018531.
  • Zettler, Howard G. (1978). "kritarchy". -Ologies and -isms: a thematic dictionary. Gale Research Company. ISBN 9780810310148.