Thus the administration of justice has always contained a personal element. In all ages, social, political and cultural movements have necessarily exerted an influence upon it; but whether any individual jurist yields more or less to such influences, whether he is more inclined in his "quae traditae sunt perseverare" or rather "ingenii qualitate et fiducia doctrinae plurima innovare constituit," depends of course less on any theory of legal method than on his own personal temperament. The point is that this fact should not be tolerated as something unavoidable, but should be gladly welcomed. For the one important desideratum is that his personality must be great enough to be properly intrusted with such functions. The principle of free decision is really not concerned with the substance of the law, but with the proper selection of judges; in other words, it is the problem of how to organize the judiciary so as to give plenty of scope to strong personalities. Everything depends upon that. Until there is a change in that regard, all legal provisions will remain as ineffective as section 7 of the Austrian Civil Code.11
It is fair to doubt, we must admit, whether the usual course of promotion within the bureaucracy is the best means of making the administration of justice proceed on grand lines. It is significant that the Paris Court of Cassation, the only court on the European continent that regularly exercises the power of free decision (in fact though not in name), has attained this goal as
11 [The section of the Austrian Civil Code referred to reads: Section 7. "Where the case cannot be decided either according to the literal text or the natural meaning of a statute, regard shall be had to analogous provisions clearly contained in the statutes, and to the principles applying to provisions regarding similar matters. If the case is still doubtful, it shall be decided after carefully collecting and considering all surrounding circumstances, according to the principles of natural justice." - Transl.] successor to the French Court of Parliament, of which it has been said that "though its members bought their places with money, yet it gave to France the best judges she has ever had." It is significant also that in Germany the only courts which sometimes have an opportunity for free decision are the Courts of Commerce, which to some extent are placed outside of the regular bureaucratic hierarchy, or at least formerly were so placed. Assuredly these institutions are no proper models. Examples should rather be sought in Rome or in England, where the courts gather into their membership the intellectual and social flower of the nation and where the most eminent men consider a seat on the bench the highest goal and the most dignified completion of their life's work. The names of the great English judges, such as Lord Mansfield, Lord Eldon, Lord Bowen, or Sir George Jessel, are better known in England than almost any famous jurist is known on the Continent. No doubt it has happened more than once on the Continent that men of that caliber have been raised to the bench, but nobody knows of them outside a narrow circle of the initiated, and their fame does not survive their own group of associates.12
It would be unfair if we failed to recognize that there are further and perhaps better-founded reasons for the existing antipathy to free legal decision. One such reason may be found especially in traditional conceptions regarding the proper limits of the functions of Government and the separation of powers. In the tendency to make the bureaucratic judge base his judicial opinion invariably on the letter of the statute we may find a good portion of the old-fashioned Liberal
12 [Some omitted paragraphs deal with special conditions in civil law countries. - Transl.] distrust of the Government; and on the other hand it will take a long time before the idea will be thoroughly familiar that the function of legislation does not extend to every form of lawmaking but is confined to the passing of express statutes. Those ways of thinking, however, really belong to a theory of the State which is already antiquated, although like every political theory it was the scientific expression of conditions historically developed.