Long ago von Bulow proved convincingly that all declaration of the law, even if it aims to be simply application of law, is by its very nature creative. Every species of legal science, consciously or unconsciously, tends to progress through the formulated law beyond the formulated law. The difference between free decision and technical decision is therefore not so much that the former may go beyond the statute, but lies rather in the manner of doing so. For the technical method requires that its work of art be achieved only by means of certain devices of legal thinking from which no variation must be permitted; while free decision counts also upon the element of creative thought by great individual minds.
10 Blackstone's Commentaries (Cooley, 3d ed.), p. 69.
One sees that the technical method is a child of the same spirit as the system of a collegiate judiciary, and the multiplicity of appeals. All these . devices are intended to eliminate as far as possible the personality of the judge. That aim, however, will forever be futile. For each application of a general rule to a particular case is necessarily influenced by the personality of the judge who makes it. Legal tradition itself, while a result of social processes, is at the same time the work of the men who labor at it. Similarly, this tradition is constantly being newly shaped and remodeled by those who continue such labors. No doubt the Roman law would show quite a different aspect if, for so much of it as has come down to us, not Ulpian and Paulus but Javolenus and Celsus had been the spokesmen. In the common law of to-day, no matter how completely it may be dominated by the technical method, everybody with the requisite knowledge can accurately distinguish the component parts which as late as the 19th century have been introduced into the edifice by such great builders as Savigny, Puchta, Arndts, Vangerow, Bahr, Jhering, Windscheid, and Bekker.