141 As for the essentials, this goes for the German switch to juries after 1848 as well. But there is a richer texture of argument to the German discussions in the first half of the century, and the direction taken after the Revolution of 1848 was not, as has been shown above, the only possible solution, although it was victorious. Conservatives, in legal theory represented by the Historical School, continued to favor the legal theory of proof until the 1840s. The negative theory of proof was offered as another solution to the conflict between the absolutist pretensions of the princes and the post-Kantian ideas on the lawof proof by Feuerbach and numerous German territorial legislations in the first decades of the century. As the Beamtenstaat evolved, the role of the legal profession grew ever more important: in the lawof proof, this was reflected by a strand of thought that was willing to grant the professional judiciary the right to freely evaluate evidence. In the second half of the century, as old social divisions were replaced by new ones, this solution, in the form of Schöffengerichte, began to look natural and acceptable to a wider majority. Swedish legal scholars, then, adopted German themes of discussion with little original input. However, it is not the amount of originality that interests us here, but rather the selective method with which certain subjects were taken up for further discussion. Essentially a doctrine of an absolutist state, the negative theory of proof had no place in the post-1809 Swedish context. Criminal trial juries had their spokesmen in Sweden, but, given the weakness and the predominantly economic character of bourgeois liberalism in an essentially rural state, these spokesmen were doomed to oblivion. The battle occurred, then, between two parties, conservatives heralding the maintenance of legal rules of proof, and an upper-class “liberalism,” imposed from above and willing to vest the professional judiciary with rights to evaluate evidence free of rules. To sum up, France shows us the political aspect of the law of proof at its clearest. In Germany, a varied choice of legal arguments and approaches to the law of proof was developed; at times, the political argument seems almost overridden by the mass and detail of the legal debate. And yet, amidst the growing and modernizing legal science, politics is always present. Sweden is important to us for two reasons. First, for the lay character of its judicial system, the basically rural nature of society, and the thinness of its political liberalism, Swedish society greatly resembled the Finnish one. And second, Sweden had what Finland lacked: a working forum for legal discussions and debates through which different positions became transparent in a completely different manner than in Finland. Nevertheless, because of certain important differences between Sweden and Finland, the accentuation and approach to the different models of the lawof proof varied.
RkJQdWJsaXNoZXIy MjYyNDk=