RB 54

131 Conclusion The German discussion on criminal procedure during the first half of the nineteenth century has above been approached using two sets of variables as starting points: first, the attitude of legal scholarship towards the composition of criminal courts, and second, the approach taken vis-a-vis the gesetzliche Beweisregeln. In the first respect, we see two basic alternatives; a court of professional lawyers and a systembased on trial juries or mixed courts {Schöffengericht). Together with the rise of German liberalism, the second alternative — in the legal sphere, supported mainly by the Germanist wing of the Historical School - proved victorious after the political convulsions of the late 1840s. In Germany, the idea of the trial jury was always attached to the idea of substitution of the free evaluation of proof for the statutory theory of proof. The idea behind it was that the lay jurors were to decide the facts of a case — which, following the English and French models, were to be separated from the legal question - freely, by forming a Totaleindruck {Totalanschauung). The opponents of Geschvaoren- or Schöffengerichte, the Romanist wing of the Historical School led by Friedrich Carl von Savigny, in a certain sense continned the ancien régime tradition of binding the courts - professional, not lay dominated ones — to legal rules of proof. The Juristenrecht, for Savigny and his conservative followers, was first and foremost to be exercised by the learned Spruchkollegien that were revived after 1815. The professional judiciary gained, nevertheless, the acceptance of the traditionalists by the 1840s, as they were already giving up on the possibility of a Professorenrecht managed through the system of Aktenversendung. From then on, Savigny’s side also finally abandoned the idea of legal rules of proof, and instead, became willing to confer the right of free evaluation of evidence upon the professional judges. What caused this increase in the legitimation of the professional judiciary? It seems obvious that it cannot be separated fromthe formation of the German administrative state, Beamtenstaat, and the corresponding rise of the position of the legal corps, nowat the heart of societal decision-making. As professorial decision-making seemed an utterly lost possibility, compared to the traditionally minded scholars, it seemed a plausible alternative that Juristcnrecht be exercised through learned courts instead of academic Spruchkollegien. Because of the much stronger liberal current favoring the jury system, this alternative was, for then, doomed to be defeated. But a change was not long in coming. As in France, the professional judiciary began gradually to increase in significance during the second half of the century. As for civil procedure, in 1858 Wilhelm Endemann strongly advocated free evaluation of evidence and abolishing all rules of evidence. His work on civil procedure (“Die Beweislehre des Civilprozesses,” 1860) had as its foremost objective the propagation of the free evaluation of evidence. Drawing on an extensive legal historical comparation, Endemann attempted to show

RkJQdWJsaXNoZXIy MjYyNDk=