All societies in history, without exception, appear to have a ‘referee’ or ‘judge’ — usually an elder male. This topic has been researched to death: Egalitarian tribal warfare societies have some elder male. Chieftain societies tend to concentrate decision making power. Urban societies develop specialists. Advanced civilizations have micro-specialists (judges). Likewise, as they grow, societies also develop specialists for extra-group conflict resolution (warriors), and specialists for in-group conflict resolution (politicians). It is impossible to have a peaceful and prosperous society without conflict resolution because planning and risk taking necessary for production become impossible.
If we continue our evolution into industrialization, market economies become so much more productive than any other in history, that shareholders (people who pay the cost of adhering to norms and rules) desire returns on their investment in that society via conformity.
The problem for social scientists, and the citizenry, is not the rational constitution of, and methods used by these different specialists in conflict resolution. The problems are the coordination of their activities, the setting of priorities, and the limits on their privatization of opportunities (corruption), as roles filled by individuals evolve into institutions and then into methodological, self interested bureaucracies.
In the private sector we use prices, money and accounting and contracts to coordinate our activities – they are empirical. Instead, the bureaucracies coordinate their activities using laws, regulations and rules – and laws and rules are insufficiently granular and empirical for the size and complexity of our current population sizes and the resulting complexity of our devision of knowledge and labor (instead their moderately rational, which is less precise, and more reliant on interpretation).
This is the problem with the rule of law – the formal principle for any law is that it must apply to all people equally in order to protect the citizenry from overreach. It is by definition and necessity a GENERAL rather than SPECIFIC tool. If instead, our government operated as a bank and insurance company, it would be empirical, calculative and specific rather than rational and deliberative, and general.
As such, it would be far less easy to rely upon supposedly moral arguments, that are in effect, universally, without exception, forms of deception or convenient rationalizations and justifications for either theft, class warfare, or corruption. This is the hole in our philosophy of government. (It is the hole some of us are trying desperately to fill with a solution.)