Why then should the inquiries of courts of justice be conducted on any different principle? In many modern statutes creating new jurisdictions it is expressly provided that evidence may be admitted whether admissible in accordance with the law of evidence in other proceedings or not.
There seems no reason to believe that this elimination of the law of evidence in favor of free judicial decision has brought any evils in its train, and it may be hoped that the progress of legal reform will eventually make this elimination general. The reasonable precaution against irrelevance and prolixity in trials is the judicial discretion of the court in excluding evidence which, in the opinion of the court, in the particular case is needless or has no bearing on the issue, and not the application of fixed predetermined rules of admission or exclusion. That hearsay is not evidence, that is to say has no evidential value, is, notwithstanding all the legal qualifications of it, notoriously untrue as a proposition of fact. Why then should it receive the authority of a rule of law? Let the court in its discretion exclude hearsay when it is in fact destitute of evidential value or where there is no sufficient reason why primary evidence should not be produced, or where its admission is otherwise unjustifiable or inexpedient; but in the very numerous cases in which such evidence is in fact and in justice unexceptionable, why should it be excluded by a rule of law?
In the case of substantive law on the other hand -law which determines rights and liabilities themselves and not merely the machinery of their judicial ascertainment and enforcement-very different considerations are applicable. Here the case in favor of the administration of justice in accordance with a complex body of rigid rules of law is well established. Here, if we are wise, we shall have as little "freie Rechtsfindung" as possible. It is true indeed that even in this sphere the evils which accompany an elaborate and technical legal system are many and serious, but they are the necessary price which a community pays for release from greater evils. It is true that the administration of justice according to law is notoriously uncertain. Yet the extensive substitution of unrestricted judicial discretion for preestablished rules of law would add to this uncertainty rather than diminish it. It is true that the law is not always wise or just; but in the long run, as representing the formulated wisdom and justice of the community, it will be found wiser and juster than the individuals who administer it. The ancient maxim that it is not permitted to be wiser than the laws is applicable, not merely to those whose business it is to obey them, but also to those who are intrusted with their administration. It is true that the law necessarily lays down general rules which cannot take due account of the special circumstances of the individual case, whereas a court which is permitted to do justice at its good pleasure can take all these circumstances into consideration and act accordingly, observing that equity which, according to the old definition, mitigates the rigor of the law. Yet it is certain that this advantage is bought at too great a price. The same principle which allows a judge to take account of the individual merits of the particular case exposes him at the same time to all the perverting impulses of his emotional nature, to all his prejudices, and to the unconscious bias of his mental constitution. For one case in which, in any reasonable system of law, a court was constrained to do injustice because of necessary conformity to preestablished rules, there would be many in which, unguided by such rules, he would be led astray by the temptations which beset the "arbitrium judicis."
A characteristic feature of modern criminal law is the substitution of judicial discretion in the measure of punishment (restrained only by a fixed legal maximum) for the earlier device of fixed penalties. I am far from being assured that the change is altogether one for the better. There is much to be said for the establishment of minimum as well as for maximum penalties, in order thereby to withdraw the courts from the influence of a sentimental humanitarianism which in the guise of mercy to the individual too often does grave mischief to the community at large.
One of the chief advantages derived from the maintenance of a body of fixed legal rules which are not subject to the "arbitrium" of its administration is that on this basis rests the prestige and power of the administration of justice. The law is impartial. It has no respect of persons. Just or unjust, wise or foolish, it is the same for all, and for this reason men readily submit to its arbitrament. In the application and enforcement of a fixed and predetermined rule, alike for all and not made for or regarding his own case alone, a man will willingly acquiesce. But to the "ipse dixit" of a court, however just or impartial, men are not so constituted as to afford the same ready obedience and respect. The "arbitrium judicis" depends for its prestige upon the reputation and personality of the court itself. The rule of law, however imperfect, has behind it the sanction of the organized commonwealth. Though the rule of law may work injustice in the individual case, it is nevertheless recognized that it was not made for the individual case and that it is alike for all. "Durum sed ita scriptum est" is allowed as a sufficient justification for its imperfect operation in the individual instance. The law-abiding spirit so created in a community is a public advantage that far outweighs the benefits which may accrue in particular cases by allowing to courts the opportunity of substituting what they conceive to be natural justice in lieu of justice according to law. An elaborate and technical system of law is doubtless in many respects an evil but it is the only road to freedom from greater evils. "We are in bondage to the law," said Cicero, "in order that we may be free." "Legibus servimus ut liberi esse possimus."