One of the most important tasks of this sort to which legal science must address itself in the future is the creation of an adequate law of evidence. In former centuries this matter was frequently treated by the jurists, and many valuable results of scientific investigations became embodied in the ancient codes of procedure. In this field, however, more than anywhere else, the fixation of the law in codes and statutes seems to have worked badly. It led to the formal or "legal" theory of proof, so called, and gradually imparted to the law of evidence a rigidity which became at last insupportable. The consequence of this was the substitution of the so-called "free weighing of evidence" for the formal theory, abolishing not merely the formal requirements of proof but all rules of evidence, a result which apparently Glaser, the principal advocate in Austria of this reform, had by no means intended.18
18 See Glaser, "Zur Kritik des Zeugenbeweises," Gerichtssaal, vol. 33; Glaser, "Beitrage zur Lehre vom Beweis."
Such was the origin of the completely anarchical conditions with which we are still contending in the law of evidence. It shows what power mere catch-phrases may exercise over the human mind, for to argue for freedom of legal decision in general is commonly considered highly dangerous, while in this particular field of evidence the total absence not merely of legal limitations but of scientific orderliness is accepted as a matter of course. This is true to such an extent that the reversal of a judgment on appeal may be ordered for the most trifling error of law, and yet not for the greatest error in the weighing of evidence. As if under some circumstances a neglect of rational rules for the weighing of evidence might not have more serious consequences than a judgment not precisely in accord with some statutory provision of substantive law. The data collected by the indefatigable Hans Gross would alone be sufficient to furnish material for erecting the edifice of an adequate law of evidence. This, however, ought not to be fixed by statute but developed by jurists and judges, after the manner of the English law of evidence.
It is thus apparent enough that there will be no lack of subjects for investigation for legal science in its quest for more modern things than are to be found in the traditional fields of inquiry. And we may well expect, if lawyers in the future seriously turn their attention to problems of this kind, that the prevalent popular notion of the jurist as a subtle, acute dialectician will have to be superseded by a different ideal. There will be no lament over this change of ideal. Of all the gifts of the human intellect, logical acumen is the least fruitful. There is profound wisdom in the fact that German legend frequently portrays the devil as a sharp dialectician.