PART FIVE: The Context of the Change: Legal Professionals and Modern Law Above, 1 have shown that the crucial change in the Finnish law of proof occurred in the practice of the high courts and the Judicial Department of the Senate in the two decades following the middle of the nineteenth century. Although it seems that, by and large, ever since the invention of the legal theory of proof in the twelfth century the rules have been in a constant, although gradual and slow, process of dissolving, the transformation can hardly be explained in terms of the logic of the internal development of the law. On the contrary, to explain the emergence of free evaluation of evidence in Finnish criminal procedure, we need to get outside the strictly legal sphere and place the change in a wider context of legal and social phenomena. But where, then, are we to search for the constituents of that framework? 1 believe that the development of the nineteenth-century law of proof can best be understood by observing the problemfromthree major viewpoints which have all been developed in the preceding chapters. First, the law of proof will be treated in connection with the substantive criminal law. In the world of legal practice, legal procedure (including the lawof proof) is a way of converting substantive legal norms into practical decisions. Second, the law of proof is considered against the background of the legal corps in the process of constituting itself as a modern profession. It is important to note that the law of proof has, as seen above, been deeply connected to questions of power at its various historical stages. It is an instrument with which the judiciary is controlled; the law of proof is, furthermore, intimately linked to problems of legitimaev. Third, I shall seek to locate the place of the change in legal practice within the structure of legal thinking in general. I will claim that a major change in legal practice in the Finland of the mid-nineteenth century was conditioned by the fact that the modern theories of legal sources and interpretation had not yet been established to install the supremacy of statutory law and to subordinate judicial practice to written law. All of the three points of observance are related to the same phenomenon, modernity. In what follows, I hope to present the emergence of free evaluation as part of the nineteenth-century modernization of law. Emphasizing the significance of individual guilt, the abolition of legal rules of proof helped allocate
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