What would we call a society run by judges and courts? A “judicocracy”? That seems like a fitting term. It would describe a political system where judges or the judicial branch assume supreme authority over decisions traditionally made by elected representatives or the executive.
Now, imagine these judges are not only largely of a particular partisan persuasion but also steeped in a specific legal philosophy that grants them sweeping power to shape the law—producing a hegemony that displaces the will of the people. In a democracy, citizens expect their interests to be represented by popularly elected legislatures and executives, not thwarted by unelected officials in ceremonial robes.
This would resemble a clerical society, where men in silly hats interpret scripture and use those interpretations to overrule laws made by legislators. We might call that a “clerocracy”—rule by clerics. The more familiar term, of course, is theocracy. If those clerics subscribed to a theocratic movement that twisted scripture beyond its plain meaning (anti-originalism), their power would become even more arbitrary.
We might also compare such a system to totalitarianism—the one-party state where elections, if held at all, are merely ceremonial. People may vote, but their choices are meaningless because bureaucrats and technocrats ultimately decide policy, often based on an ideology foreign to the populace—an ideology used to control them.
In a democratic republic, judges are expected to weigh in on constitutional matters, ensuring that laws align with the nation’s foundational principles. But what about legal issues not explicitly addressed in those founding documents? Consider a system where the judiciary, empowered by common law and the doctrine of stare decisis, not only upholds precedent but also has the authority to overturn it, creating new legal interpretations. Now imagine a legal theory that claims to see things in documents that aren’t really there—while dismissing those who question it as lacking the intelligence to understand.
Separation of powers is a delicate balance. It’s certainly preferable to absolute rule by a single authority. But what about the people? Is it not their government?
John Locke, the first liberal, believed so. In Two Treatises of Government, he argued that governments form through a social contract, where individuals surrender certain natural rights in exchange for protection of their fundamental ones—particularly life, liberty, and property. However, if a government fails to protect these rights or becomes tyrannical (which, to Locke, was essentially the same thing), the people have the right to overthrow it.
For Locke, a government’s legitimacy depends on the consent of the governed and its commitment to protecting their rights. His philosophy echoes in the Declaration of Independence, written by future president Thomas Jefferson:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
Some might argue that “judicocracy” is just another way of describing the “rule of law.” But is it? One could say the same about a clerocracy or even a totalitarian state—after all, they have laws, too. The real question is: To what end does the law serve? Does it work for the people? Or for the elite? And what of the individual?
freedom and reason 