PART FOUR: Fromthe Legal Theory of Proof to the Free Evaluation of Evidence: the Change in Legal Practice As the legal theory of proof was abolished by legal practice during the course of the nineteenth century, the Finnish lawof proof passed frompre-modernity to the modern era. Aclaimlike this is not difficult to make, but for various reasons it is rather demanding to specify when the transition occurred. More than anything, the difficulty owes to the ambiguity of the Swedish-Finnish legal theory of proof itself: the essence of the theory seems to fade away to the point where one begins to wonder whether any statutory theory of proof ever existed at all. But even in nineteenth-century Finland, there is a core to the theory of proof, although it may not be a solid one. In this chapter, I will first seek to describe how the legal theory of proof appears in the Finnish legal practice of the first half of the nineteenth century. Although the legal rules of proof were far from being slavishly followed in Finnish courts, they nevertheless formed the theoretical,' and not only statutory, background of the law of proof. Within this general conceptual framework, then, a considerable liberty was allowed to the judiciary regarding the practical task of evaluating evidence. The lower the court, the more inclined the judges seem to have been to depart fromthe rules of proof and to convict in a homicide case even when nothing but circumstantial evidence was brought before the court, as long as the evidence was sufficiently convincing. As to the lower courts, conviction on less than full proof was a commonplace even in the period of legal proof; for the high courts and theJDS, it remained an exception until the 1850s. The two decades following the middle of the nineteenth century, it will be claimed in this chapter, mark the culmination of the transition from the legal theory of proof to the free evaluation of evidence. Perhaps some will insist that it is artificial to identify a gradual change like this using two decades. Like all periodizations, this one, too, is arbitrary: the first signs of the free evaluation of evidence appear well before the middle of the century, just as vestiges of the old theory lingered almost until its statutory abolition in 1948. ' By “tlieorctical” I am referring to the general eonceptual apparatus of the Finnish judiciary, although 1 do realize the problems of applying the term to the thinking of a predominantly unlearned bodv of judges.
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