
| Abstract: Reflections on Professor Lisa Hilbink’s critique of Professor Ran Hirschl’s perspective on kritarchy (or kratocracy or dikastocracy, to which he refers as juristocracy; i.e., rule by judges); reflections on the reality that the concepts of democracy and rights are not coherent as currently understood, and that neither judges nor legislators possess the ethics and independence necessary to effectively exercise constitutional control; and, criticism of the misuse of linguistics to confuse issues such as democracy and rights and on the dubious nature of current concepts of constitutional control. Key words: Juristocracy, kritarchy, kratocracy, dikastocracy, legislators, judges, democracy, liberty, pluralism, rights. |
Introduction:
This year I ran across an article published by Professor Lisa Hilbink, PhD, entitled “Beyond Manicheanism: Assessing the New Constitutionalism”. It was published in the Maryland Law Review[1] over two decades ago. The version I ran across was an unfinished draft of the article which she shared on Academia.edu during 2005 and one sentence criticizing the now late professor Ran Hirschl, PhD, set me off in an unexpected direction. Dr. Hilbink wrote, at least in the February 2005 draft, that: “Hirschl’s central argument is based on a stark distinction between courts as insulated,…semi-autonomous, professional policy-making bodies on the one hand, and legislatures as faithful mirrors of popular will, on the other.”
While I tend to side strongly with critiques of what Dr. Hircshl referred to as “Juristocracy” in his lauded 2005 book, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism;[2] the quote made me focus on the reality that if legislatures ever truly reflected the beliefs and goals of their electorates, that is certainly not the case today thus, “faithful mirrors of popular will” they certainly are not. Today, their constituents are not those who “vote” them into office but those who finance their campaigns and the political parties that post them. Of course, that’s also true of heads of state and chief executives. Thus, while unelected judges are all too frequently oligarchical and elitist, so too, for the most part, are legislators and the political heads of executive branches.
That should certainly not be the case but, as long as political campaigns are costly and privately financed by non-voters (as demanded by the United States Supreme Court[3]), then the possibility of elected officials acting in the interests of the voters who elect them rather than in the interest of the billionaires who fund them is, at best, improbable. Especially since so much of the expense of being elected eventually winds up in the coffers of the legacy media, a complex of simplistic organizations owned and controlled by the same billionaires who provide the bulk of the political contributions.
The Relative Positions of Dr. Hirschl and Dr. Hilbink:
Dr. Hirschl’s core argument with respect to kritarchy (or kratocracy or dikastocracy, to which he refers as juristocracy; i.e., rule by judges), is, as I understand it, that the post-World War II global trend of empowering courts and recognizing inviolable constitutionalizing rights as a means to limit “democratic abuse of democracy and social justice” (an ironic turn of phrase), is a ruse, and that the reality is that the expansion of John Marshall’s concept of judicial review and judicial constitutional control[4], which morphed in the twentieth century into the concept of judicial activism and the organic constitution, was instead driven by threatened political elites, economic stakeholders, and judicial leaders engaging in “hegemonic preservation” to protect their policy preferences from majoritarian politics.
Dr. Hilbink’s position, on the other hand, criticizes Dr. Hirschl’s “hegemonic preservation” theory which she describes as positing that the global expansion of judicial power is not a neutral victory for human rights but a strategic move by a tripartite coalition of threatened political elites, economic elites seeking to lock in neoliberal market policies and high-court judiciaries seeking to protect their interests from the “vicissitudes of democratic politics”, something accomplished by shifting decision-making from majoritarian legislatures to insulated courts. She does so although acknowledging the empirical weight of Dr. Hirschl’s case studies, by arguing that Dr. Hirschl fell victim to the exact same Manichean trap as the liberal “enthusiasts” he criticizes. According to her, where the legal scholars Dr. Hirschl criticizes romanticize judges as uniquely noble, principled actors operating entirely above the political fray, Dr. Hirschl swings to the opposite extreme asserting that he views judges and institutional design as uniquely self-interested and collusive. While admitting that a court’s origins may not always (or even usually) be pure, she asserts that that does not necessarily mean that long-term institutional impacts are malevolent. In conjunction with the foregoing she differentiates the mother of judicial activism, the United States Supreme Court, from constitutional courts and courts vested with constitutional authority as well as general oversight of legal systems in other countries, seeming to admit that Dr. Hirschl may be correct with respect to the former, but not necessarily with respect to the latter. In that regard, Dr. Hilbink argues that the judicial role in constitutional control is not monolithic and instead, involves massive structural variations such as how judges are appointed, their legal subcultures, and their professional norms, all of which dictate whether a court acts as an elite shield or a democratically responsive partner. Dr. Hilbink finally notes that Dr. Hirschl relies heavily on a rigid dichotomy between “law” and “politics”, implying that there are questions that are purely moral or political and that transferring them to a courtroom strips them of democratic legitimacy to which she counters by asserting that that judicial review and legislative policy-making can be interactive and mutually supportive rather than inherently adversarial.
Notwithstanding their differing perspectives, however, both challenge the romantic, mainstream view that the global expansion of judicial review is simply a natural, benevolent evolution toward human rights and social justice, both arguing that while constitutional courts are highly effective at handling procedural liberties, collective identity, or negative rights, they rarely advance economic equity or redistributive justice and both view the insulation of policy-making from direct popular democracy as a defining hallmark of modern constitutional frameworks.
An interesting debate and convincing performance by Dr. Hilbink. My perspective is somewhat different and more analytically pessimistic for different reasons. I see both centered on the impact of what purports to be democracy in governance and on which of two competing institutions can best reflect and protect it. But, to a great extent, I believe that democracy is and has always been, at least in its current incarnation, illusory and confusing. If the argument is better defined and more limited so as to involve only the concept of majority rule, then any delegation to a select group, whether unelected judges or elected legislators, in each case, where immunity for ignoring the will of the majority is immune from consequences (other than non-reelection or reappointment), has historically been doomed to failure. And the obverse, direct democracy, as Socrates is reputed to have observed and experienced, is not an answer.
My Observations:
With reference to the foregoing, I have long felt that linguistic abuse as a means of obfuscating reality has, to some extent, been a weapon well-used by lawyers, politicians, journalists and academics to confuse the electorate. I have written concerning that as it applies to the term “democracy” which, rather than reflect the concept of majority rule, has been so loaded down with contradictory concepts and platitudes as to make it, as a concept, unworkable. That is especially true when democracy is defined as a concept melding majority rule with liberty and pluralism, each of which is at odds with the others. As opposed to majority rule, liberty is a purely individualistic concept grounded on individual autonomy and pluralism is grounded on the rights of minorities vis a vis both individual and majority rights. The term “rights” is as incoherent but for different reasons. Rights purport to involve something inherent rather than granted and thus subject to neither conditions nor limitations, no matter how reasonable. How unreasonable is that? Based on that definition, no rights exist, have ever existed and can never exist, as is demonstrated by the reality that rights are respected by governments only when convenient. The purported solution? Keep expanding their scope into even more improbable, albeit worthy areas (like the environment, peace and social welfare). That is not to imply that something aspirationally similar to rights, perhaps involving mandatory government spending priorities, would not be meritorious, but all we have, anywhere, are artfully phrased non-functional “guarantees”. I note that “guarantees” are generally unattainable oxymorons, at best implying reasonable efforts.
Conclusions: So, what was the question???
Well, I think the question relating to my diatribe concerning the nature of democracy and of rights was, or should have been, where does the concept of a constitution fit into the foregoing? Or perhaps, where should it fit in. Not in the organic sense of establishing and regulating the branches and organs of governance but in the more esoteric sense of seeking to create a just and workable balance between majority rule, liberty and pluralism and to create a mechanism to at least approach the concept of rights. And to determine just how calcified related decisions should be, calcified in the sense that a constitution seeks to impose current values on future generations while ignoring important aspects concerning the values of generations that preceded us. That would then bring us to the questions raised by Drs. Hirschl and Hilbink as to what kind of institution could most effectively act as the enforcement mechanism for constitutional goals, dictates and aspirations. At that point, their arguments would acquire significant relevance, although perhaps as starting points for evolution towards a truly efficient, just and objective means of constitutional control, something which may well prove as solely aspirational as the “rights” and respect for “democracy” that most constitutions purport to guarantee. At least so long as the humans involved remain so prone to elitist self-preservation and the cancerous quest for ever increasing control, regardless of their roles.
References:
Calvo Mahé, Guillermo (2026): “Of Counterintuitive Courts, Constitutions and Bibles“; The Inannite Review on Substack, October 06, 2026, available at https://guillermocalvomah.substack.com/p/of-counterintuitive-courts-constitutions?r=lwzkv&utm_campaign=post&utm_medium=web.
Calvo Mahé, Guillermo. “A Very Brief Observation Concerning the Concept of Treason in a Pluralistic Democracy”; The Inannite Review, Substack, Aug. 2, 2026, available at https://substack.com/@guillermocalvomah/note/p-209521381?r=lwzkv&utm_source=notes-share-action&utm_medium=web.
Calvo Mahé, Guillermo. “Motley Constitutionalism: A Labyrinthine Aphorism”; Medium, 30 July 2023, available at https://guillermo-calvo-mahe.medium.com/motley-constitutionalism-a-labyrinthine-aphorism-9270c689f12d.
Calvo Mahé, Guillermo (2026): “Of Counterintuitive Courts, Constitutions and Bibles”; The Inannite Review, Substack, Oct. 6, 2026, available at https://guillermocalvomah.substack.com/p/of-counterintuitive-courts-constitutions?r=lwzkv&utm_campaign=post&utm_medium=web.
Calvo Mahé, Guillermo. “Sobre el control y la revisión constitucional: Un análisis comparativo centrado en las repúblicas”; XII Foro de Tendencias Contemporáneas de Derecho, Universidad de Caldas, Nov. 2017, Manizales.
Hilbink, Lisa (2006): “Beyond Manicheanism: Assessing the New Constitutionalism”; 65 Md. L. Rev. 15 (2006); University of Maryland Francis King Carey School of Law, Baltimore.
Hirschl, Ran (2004): Towards Juristocracy: The Origins and Consequences of the New Constitutionalism; Harvard University Press; Cambridge.
_____
© Guillermo Calvo Mahé; Manizales, 2026; all rights reserved. Please feel free to share with appropriate attribution.
Guillermo (“Bill”) Calvo Mahé (a sometime poet and aspiring empirical philosopher) is a writer, political commentator and academic currently residing in the Republic of Colombia (although he has primarily lived in the United States of America of which he is also a citizen). Until 2017 he chaired the political science, government and international relations programs at the Universidad Autónoma de Manizales. Previously, he chaired the social studies and foreign language departments at the Eastern Military Academy in Huntington, New York. He is currently the publisher of the Inannite Review available at Substack.com; an intermittent commentator on radio and television in both Colombia and abroad (e.g., NewsX World in India); and, an occasional contributor to diverse periodicals and publications. He has academic degrees in political science (BA, The Citadel, the Military College of South Carolina), law (JD, St. John’s University, School of Law), international legal studies (LL.M, the Graduate Division of the New York University School of Law) and translation and linguistic studies (GCTS, the University of Florida’s Center for Latin American Studies). However, he is also fascinated by mythology, religion, physics, astronomy and mathematics, especially with matters related to quanta, cosmology and cosmogony. He can be contacted at guillermo.calvo.mahe@gmail.com and much of his writing is available through his blog at https://guillermocalvo.com/.
[1] Hilbink, Lisa (2006): “Beyond Manicheanism: Assessing the New Constitutionalism”, 65 Md. L. Rev. 15 (2006); University of Maryland Francis King Carey School of Law, Baltimore.
[2] Harvard University Press; Cambridge. The book won the American Political Science Association’s Law & Courts Section 2021 Lasting Contribution Award.
[3] See, e.g., Buckley v. Valeo (1976); Citizens United v. Federal Election Commission (2010); McCutcheon v. Federal Election Commission (2014); Federal Election Commission v. Ted Cruz / Senator Ted Cruz Committee v. Federal Election Commission (2022); and Federal Election Commission v. NRSC (2026).
[4] Which I have criticized in diverse articles, some of which are listed at the conclusion of this article.









