It is certain that one need not expect better or juster results from such technical decisions than from free ones. Generally speaking, it is undoubtedly much easier to decide a definite case correctly than to establish an abstract rule universally applicable for all imaginable cases; and surely it can hardly be maintained seriously that such a rule will invariably result in the fairest decision, even in those cases which nobody had thought of when the rule was made. As a matter of fact no such thing is attempted by the technical judicial method of decision; its goal is quite different. A rule is to be framed, not necessarily always just, but at least certain, that can be ascertained in advance and will afford protection against arbitrary and biased judgments. In order to attain this end, the judge is to be subjected, bound hand and foot, to a rule that determines all things in advance.
If an inference may be drawn from the experience of four centuries during which this legal technicalism held undisputed sway, it would seem that this goal has never been reached, and that it can never be attained. In the countries where the technical method prevails, the decisions are no more certain, even by a hair's breadth, and the courts not a whit less arbitrary, than under the "jus civile" of the Romans or under the common law of Englishmen and Americans. Even the most ordinary interpretation of a statute, consisting in the discovery of the legislative intent, gives rise to so many doubts that a man who wanted to misapply the law would have to be peculiarly inept in order to find the paper fence of the statute an obstacle. Really, no possible harm could be done if we renounced once for all our attempts at making the law certain and guaranteeing its unbiased administration by means of fictions and rules of construction.
If the prevailing doctrine were really meant seriously, it would be necessary to overrule every motion of a party, whether the motion of plaintiff for leave to bring suit, or the motion of a defendant for leave to interpose a demurrer, a motion in the course of an action or a motion in an "ex parte" proceeding, unless an express provision could be shown in the statute directing the court to grant the motion. Such is said to have been the rule in Rome, according to the account given by Gaius (though quite unreliable), in the days when "legis actiones" were in vogue. Then every action had to abate that was not founded on a specific "lex." Not one of the modern codes takes this position. All of them admit at least analogies and rules of construction. According to these, it suffices if by the statute a similar motion would have to be granted, or even if the claim could be made to appear by construction to be in harmony with the law as declared. The prevailing doctrine justifies the application of a statute in cases which the legislator obviously never had in mind, by saying that the legislator, if he had thought of them, would have treated them as he treated similar cases, or as he treated those cases which serve as starting points for the work of logical construction.
Every analogy, however, and every rule of construction implies (to use the expression of Gustav Rumelin) a "value judgment"; the implied assertion is always that by means of the analogy or the rule of construction a fair result may be obtained. No doubt that is correct, for otherwise one could hardly maintain that the legislator would have decided in the same way if he had thought of such cases. But if that is really the case, then the technical method of decision also leaves so much to the discretion of the judge that it affords practically no advantage at all over freedom of decision.