4 And yet, important facets of the nineteenth-century evidential transformation remain untold. In the German states, the law of proof was intensively discussed before the statutory adoption of free evaluation of evidence after the convulsions of 1848. With the emergence of the bureaucratic state, legal professionals acquired a significant positionwithin the German Beamtenstaat, and with the subsequent superiority of written statutes the place of Juristenrecht vis-a-vis other sources of law was determined by the emerging theories of sources of law and interpretation. At the beginning of the nineteenth century, jurists as a profession became conscious of themselves; as an integral part of modern law, the genre of legal journals developed to communicate and to refleet the profession’s concerns. As I hope to show, all this had an important bearing on the lawof proof. During the course of the nineteenth century, free evaluation of evidence was, little by little, granted not only to trial juries but also to professional judges. Paradoxically, as courts at least in theory were now more bound to statutory law on one hand, on the other hand they were formally liberated from the rules of proof that had strained themever since the emergence of centralized legal systems in the late Middle Ages. Seen fromthis point of view, the nineteenth-century changes in the law of evidence prove extremely influential and interesting. Free evaluation of evidence emerged, then, as part and parcel of the modern law. To get a bit ahead of my discussion, the requirement of legal proof, although in practice modified in many ways, could not provide a framework flexible enough to meet the needs of the modern society aiming at increased effectiveness. Free evaluation of proof, as it was based on the subjective conviction of a court, allowed the judiciary to decide things materially as correctly as possible and contributed, thus, to a more accurate allocation of control measures. Free evaluation of evidence was, therefore, effective and rendered the judicial apparatus more capable of solving legal and social problems at both the local and the general level. If free evaluation of evidence, together with the principles of publicity and orality, is typical of legal modernity, then howdoes the history of Anglo-American lawrelate to this? Compared to continental Europe, the development in England and the United States has been almost the opposite: whereas the medieval English jury systemwas based on a kind of free evaluation of evidence, from the late eighteenth century up to the present, a body of complex rules of evidence has risen in the Anglo-American legal world. Furthermore, the importance of the jury has declined and the Anglo-American trial has become an increasingly lawyer-dominated one. See Langbein 1987 pp. 32-34 and Twining 1990 pp. 186-188. Fromthe point of viewof this study, however, it should be noted that the development of the law of proof has various dimensions that should be viewed as a totality. Opposite tendencies may, therefore, when viewed in the context of other important elements influencing the law of proof, for instance material criminal law and political power structure, turn out to be less different than what they seem at first sight. Apparent similarities, such as the rule orientation of the continental legal theory of proof and that of the modern Anglo-American law of evidence, may then, upon a
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