But how about the possibility of foreseeing what the decision of the court will be? In what cases is such foresight actually attained under the technical method? Apparently in those few cases only in which the law is so clear and definite that there is really no need of searching for it. In cases of this sort, however, the method of free decision would make no change, for it would come into play merely when there is no clear provision in the formulated law. There is good reason to claim that a better guaranty for certainty of the law than by the technical method may be found in a method of free decision-bound only by judicial precedents, but not beyond that. Even to-day, a judge feels greater assurance when he can refer to a series of adjudications than when he has nothing but a construction of the statute which may at any time be upset by some other artist in construction.
On still another ground, however, one may venture to call the method of legal technicalism nothing less than the sin against the Holy Spirit. For this method has obscured our eyes to the only true principle at the foundation not merely of a certain and unbiased administration of justice, but also of a justice dominated by great ideals: There is no guaranty of justice except the personality of the judge. By making legislation the center of our system of law, and by nothing else, has it been possible to hide for so long a period the recognition of the simple truth that the greatest task that can be given a man to discharge, Justice, requires a standard of mental and moral greatness far above the common average. Thus, and thus only, can people fail to see that for such a task a man is not fit merely because by examination and a little practice he has proved that he can, after a fashion, find his way through the sections of a code.
Even mistakes have a logic of their own. When the code sections were made the guardians, so to speak, of legal certainty, other guardians had to be installed to see that the guardians did their duty. Thus came about the system of appellate courts, one above the other, and the baleful practice of having courts of plural judges, in which the several judicial individualities either neutralize each other or vanish in mere corporate responsibility. Such was the origin of the modern impersonal courts of the European continent, which are radically different from those of the Romans, and also from those of the English, among whom the first men of the nation count it the greatest of honors to be called upon the bench.6 Anybody who realizes how with us an unproductive dialectical smartness is considered the highest proof of legal skill can hardly understand why the Romans had such a high regard for legal learning, and why they should describe it as "vera philosophia" and "divinarum atque humanarum rerum notitia."