223 the basic hostility of the legal theory of proof towards the subjectification of criminal law became apparent at the doctrinal level at least in the 1850s as Ehrströmadopted the division of crime into subjective and objective sides; as shown above, he had a basically positive outlook on the free evaluation of proof. The readiness and eagerness with which the statutes of 1866 were passed by the Finnish Diet show that in practice the decisive turn towards the abolition of legal rules of proof had already been taken in the Finnish court practice by the 1860s. In order for the modern criminal law systemunder construction to function and to be able to differentiate between degrees of culpability the way the prevailing doctrine of the mid-nineteenth century required, the judiciary had to be allowed to depart from the legal standard of full proof. The latter was simply excessively crude an instrument to capture the finesses of a modern theory of crime. Two decades later, when the Criminal Code of 1889 was sanetioned, these positions were all the more obvious. 15. The Finnish Legal Profession in the Nineteenth Century The nineteenth-century transformation of the Finnish law of proof was the work of the judiciary. Why did they determinedly begin to differentiate legal practice fromthe legal rules of proof in the 1850s and 1860s? Was there something remarkable about the social position of the legal professionals at that time? In this chapter, I shall advance the idea that the preconditions for the change in the law of proof were similar to those of other countries in many aspects. As in most European countries, the nineteenth century was the era of the creation of a bureaucratic administrative state that towards the end of the century led to the emergence of the liberal Rechtsstaat with its positivist ideology. Since the newand efficient bureaucratic state was built on law, legal professionals came to play an important role in its creation. On the other hand, the Finnish history of procedural law has some characteristics of its own that differ significantly fromits continental counterparts insofar as the lawof proof is concerned. Unlike in France and Germany, in Finland the middle classes or bourgeoisie assumed no direct role in the breakthrough of the free evaluation of evidence. In Finland, the abolition of legal rules of proof was never openly politicized. Instead, it was a development of court practice. For reasons related to the primitive state of juristic writing in Swedish and Finnish law and the correspondingly strong influence of laymen in courts, the legal theory of proof had been adopted in Finland in a “thin Cf. Klami 1994 p. 571.
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