The idea that judges do not “dispense” justice has some biblical plausibility, but it is questionable whether a civil justice system based on such a view will work. There is a clear tension between the modern conception of judicial function as legislator and the biblical view of the court as a conclusion of justice. Before we decide which point of view best fits the law, it might be a good idea to look at the historical understanding of the issue. As the following evidence shows, the historical understanding of the verdict seems to favour judges who “find” the law rather than “do” it. While we may question the practicality of this view, historical legal writers certainly seemed to believe that it would work and did. Historical understanding. The pre-existing legal system of divine origin was recognized as objectively real. Biblical and historical views affirm the role of judges in exercising the function of judicial review, in resolving disputes, and in explaining the legal reasoning behind any decision. Moreover, this view confirms the value that precedents have in future cases because of the power of their reasoning. However, this view does not consider precedents to be legally binding on parties other than litigants, since a court notice is an injunction and not a “rule of action”. Scholars writing in legal contexts use the term “universality” in a variety of ways. Some, following Kant, use the term to describe an obligation that, while it applies to person A in circumstances X, applies to all persons in circumstances X.

A rule of law could be described as “universal” if it applies to all persons within a jurisdiction, although the rule itself may designate certain characteristics that a person must have in order to be covered by the rule. (A rule for suppliers who supply a particular product or are located in a specific location, or achieve a certain market share, for example.) This concept of universality thus overlaps with the notions of equal treatment of persons in similar relevant circumstances and impersonal application of rules, i.e. without regard to (irrelevant) personal characteristics. Clarity and uniqueness limit the structure of reasoning used by logic when applied exactly: there must be, at least theoretically, a “right” answer to the question of whether a particular performance is wrong or not. The logic must be coherent and not contradictory. A single classification does not mean that the rules and principles that make up logic lead to an obvious classification. The set of rules and principles that make up logic could be complex and ambiguous, and capable of providing multiple answers, although this would make it more expensive. (Our simple model assumes that all logic is free to use.) Agents can make mistakes when applying logic. It is important that there be a recognized process for determining a clear answer from a set of possible answers implicit in rules and principles.

This observation gives substance to our original definition of logic not only as a set of rules or principles, but as a product of a third-party institution. To achieve a single classification of common knowledge, there must be an authoritative manager of the classifications obtained by logic: a single arbiter who can resolve complexities, ambiguities and gaps. This highlights why we typically find that in a complex environment, for example, an established legal system typically has a single Supreme Court. Since the law is in the nature of a rule and not an order, ordinances are not a law. Therefore, it is recognized that the role of an executive branch (such as a president or governor) is to enforce, not enact, laws. The executive branch may enforce court orders or issue its own orders concerning lower officials. However, an executive branch cannot pronounce rules that bind the general population. Samuel, who later tried Israel, exercised a judicial function by holding King Saul accountable to the law.

Like Moses, Samuel did not judge according to a standard of law that he believed only to be correct, but ruled that Saul had violated a pre-existing and known legal obligation. We therefore propose a different definition of the legal order in order to guide the development of a positive framework for the analysis of the origin and characteristics of the law. We will say that an environment can be organized on the basis of the legal order if (i) there is an identifiable entity (an institution) that deliberately provides a normative classification system that designates certain actions as “illegal” (criminal, undesirable) and (ii) actors significantly refrain from unlawful acts resulting from the classification system. We propose these criteria as indicators of the legal system for positive analysis, as they capture the fundamental political role of law, making the study of law interesting for economists and policy theorists: law is a useful vehicle for shaping behavior to achieve desired goals. Of course, many mechanisms and institutions shape behavior: social norms, for example, determine behavior in all human societies. However, what makes law interesting to positive economists and policy theorists is the ability to consciously change patterns of behavior in order to achieve normative goals such as economic growth, security of individual freedoms, or redistribution of wealth. The criteria we propose for identifying legal systems aim to distinguish a system in which norms emerge that derive in practice from repeated interactions, and in which norms are deliberately articulated and systematically implemented. We have shown that centralized coercion does not have to exist for a legal system to emerge. (Examples of situations in which this becomes clear can be found in our companion paper Hadfield & Weingast [2011a].) As we show, decentralized execution is a possible substitute for centralized execution. Moreover, in many, and perhaps all, countries governed by law and the rule of law, the two third mechanisms are likely to be in place.

The biblical and historical view has been criticized and rejected in a modern way, on the grounds that it is misleading, claiming that judges do not make the law when they really are. The modern view, however, is subject to mutual criticism, namely that it provides a misleading justification for judicial legislation when judges should not legislate at all. From the modern point of view, neither laws, nor constitutions, nor previous decisions ultimately restrict the judge as a legal obligation. The only legal restriction on a judge`s legislative capacity is the decision of a court of appeal or superior judge to repeal the law it has passed. While there are many other factors that affect a judge`s ability to make laws, these are ultimately political, that is, they are subject only to what people allow as a political issue. In fact, judicial “legislation” bypasses the normal legislative process and prescribes rules for society at large without the consent of the people through their representatives. To the extent that this approach is legally unchecked, it does not respect our legal traditions, but undermines them. The biblical and historical view supports the common law tradition in the best sense of the word.

Since all human beings are imperfect, legal judgments will often be imperfect. One of the objectives of the common law is to discover and correct these imperfections, not by prescribing new statutes, but by clarifying more precisely what the original law was. Thus, the historical view repeatedly refers to the original laws, whether prescribed in nature, the Bible, or a constitution. The modern view, however, focuses primarily on recent legal memory and shapes new opinions to adapt to new circumstances.