The rule of law has long been sacred to classical liberals. The term was popularized by British legal scholar Av Dicy, but the concept is much older. The rule of law has three distinct characteristics in the common law world.
All that does not have arbitrary authority on the part of the government (rank or condition)
This is the cause of the controversy. Why do judges need to decide the law? If the judge simply decides and Mace decides the legreed, will the judge of Sand simply replace the politician’s decision? Why do judges deserve special respect when classic liberals are skeptical of politicians? Or, as it is on the top, the judge of Allen is just “a black robe politician?”
These are legitimate questions. Fortunately, public selection analysis allows you to explore them. In reality, judges are not special people. Like others, they face incentives, and those incentives affect their behavior.
In the 2006 Judge and Jue Judge: American Tort Act on Trials, Claremont McKenna University economist Eric Heraland and George Mason University economist Alex Tabarok explain how judges, jue judges and other officers influence the outcome of the judicial system. One of their great findings is that tort prizes are often driven by political factors such as judicial elections. In other words, when judges face elections for their seats, they tend to award higher claims to plaintiffs than those appointed for life. When judges are treated as political flames, they tend to act as black robe politicians. When judges are treated as arbitrators of law, they tend to act as arbitrators of law.
Judicial proceedings vary at state level, but federal judges have been approved. On average, a president who has adapted to a judge is in violation (for example, “it is unconstitutional retaliation and perspective discrimination,” the judge wrote.
There are also other incentives. The Court of Appeals/Supreme Court can overturn the decision of a subordinate judge (and judges don’t hate overturning opinions), and in extreme cases, judges can each beep.
Of course, ideology can be important. In the case of Supreme Court Desion, ideology could play a greater role than lower court magazines. However, this potential outcome is due to the nature of the suit heading to the Supreme Court. The Supreme Court states that there is no clear law – if there is a possibility that there is a fair difference in interpretation. Rather than dealing with all cases, the Supreme Court deals with unclear cases. Because they are cases and therefore cheile, ideology may ultimately be a factor in shaping opinions. And it even depends on justice. Secretary Roberts focused on strong consensus, and his courts have driven out an incredible number of unanimous decisions. For example, in TER in 2022, almost half of court magazines (48%) were unanimous.
So classic liberals like Maiel placed a lot of faith in the courts because of the incentives they faced. If the incentives are different, the judge will have different opinions. Now, this does not mean that the courts will always make decisions right. In the United States alone, there is a numbered decision that makes the courts clear that they are wrong. Scott v Sandford, Press Sea v Ferguson, Kolematsu v United States, Wickard v Philburn, etc. SOM has been overturned (Constitutional amendment, Dredge Scott of Plays by Brown V-board)
Incentives are not mind control, and ideology can affect decisions. However, it is unfair to think of it as a fair politician in black robes, as the incentives faced by judges and justice are different from the ESE faced by politicians.
For more information, I would recommend Federalism 78, which I have a similar argument to what I do here. Similarly, Todd Ziwicki, a professor of law at GMU, has an interesting paper on how the doctrine of staring decisions can change the incentives of litigators and judges (see section III.A, particularly in Section III.A).
*For classical treatment, see AV Dicy’s Constitutional Laws, Chapter 2. Bruno Leoni’s freedom and law is another excellent read. For the history of common law development, we recommend the history of English law of Mightland and Pollock before the era of Edward I and Pracknet.
