126 Originally, as mentioned above, Savigny had stood for professorial law. This basic position had meant that he was opposed not only to the Germanist idea of Volk as the basis of legal administration through a systemof juries, but also to judge-made law, Richterrecht; instead, the legal world was to be ruled by professors. However, in the late 1830s, as Savigny came to see that the Historical School’s ideas about Juristenrecht had broken through in the judiciary, he decisively switched positions.Unfit as the idea of juries continued to be for his conservative viewof the world,^^ Savigny was nowready to give up the gesetzliche Bezveisregeln, but only if freedom of evidence were connected to a professional judiciary. In the 1840s, this strain of thought became one of the possibilities that the versatile German discussion offered to the observer. Said MöhPS: “Der Zweck des Strafverfahrens aber erheischt Oeffentlichkeit und Miindlichkeit und mit ihr mufi und wird die gesetzliche Beweistheorie verschwinden.” There was, for Möhl, no doubt as to whether statutory rules of proof belonged to a world of the past. Möhl, like his Germanist colleagues, welcomed publicity and orality as leading principles of criminal procedure and guarantees against judicial arbitrariness. But the administration of justice was to remain in the hands of professional judges who, with their “Wissenschaft und Gewissen” were the best guarantee against judicial arbitrariness, especially if the judges were obliged to state the grounds for their decisions. Perhaps the clearest expression of the sentiments of those writers who preferred trained lawyers as users of free evaluation of evidence were found in a writing by the French-German advocate Jean Jacques Gaspard Foelix. The main targets of Foelix’s article were the French criminal procedure, the jury system, and the publicity principle.To Foelix, jurors could not have sufficient expertise the way professional judges did. He strongly defends the German judicial corps as learned, reliable, and not likely to fall into arbitrariness. The professionals had “durch Studium und Erfahrung” acquired a “ScharfblickV ^ Whitman 1990 pp. 204-205. It was in the 1830s that judicial independence became a major issue in the constitutionalist discourse. Ibid.-, on the debate, see Ogorek 1989. On the reformative aspect of Savigny’s consers atism see, however, Riickert 1984 pp. 226— 229 and Whitman 1990 p. 184. 38 Möhl 1842 p. 309. 3^ Ibid. pp. 285—293. For Möhl, the gesetzliche Bezceisregeln could, how’ever, be retained as part of the legal doctrine. Ibid. p. 294. See also Völcker 1841 p. 463, according to whom “scheint die Einrichtung, wo rechtsgelehrte Richter nach moralischer Ueberzeugung das Urtheil finden, immer mehr Freunde zu gewinnen.” In his practice, Foelix had encountered several problems with the modern French criminal procedure: publicity was a menace for both the innocent accused and one who would rather confess privately. Besides, publicity was, for the lower classes, “a school of immorality” {“eine Schule der Immoralität"). Foelix accepted, howev'er, the orality principle. Foelix 1843 pp. III-VIII, 52, 64-67.
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