231 to the legal professionals of the mid-nineteenth century. It must have seemed obvious to the reform-minded legal corps, better educated in law and therefore most likely better aware of international developments in the field than before, that the contemporary systemof statutory proof was worn out, torn to pieces, and poorly matched to the prevailing international trends. For the needs of modernizing society, the statutory rules of proof were too imprecise insofar as they dealt with criminal responsibility. Having said this, however, we still have not said much as to why the reformative fervor went the way of giving judiciary, not lay juries, the right to freely evaluate evidence. After all, the jury system was an extremely popular theme in the international discussion of the first decades of the nineteenth century. There is an obvious reason for this, for it was clearly in the professional interest of the institutionalizing legal corps and judiciary to accrue the right to evaluate evidence freely. Moreover, no effective counterforce in the form of a powerful bourgeoisie existed in Finland to claimthe right to decide questions of fact. Therefore, it was the lawyers and judges, not lay juries, that replaced the legislator and his pre-established rules as masters of facts. Why, then, despite the evident fondness of the mid-eighteenth-century Finnish legal professionals for liberal modern reforms of procedure, were problems of evidence addressed so little in the discussions of the Legal Association? The reasons for this are evident enough: by the creation of this first working forum of discussion, the decisive turn towards free evaluation of evidence had already been taken and the lawof proof had evolved to a point of no return. The main problem- whether the statutory theory of proof was to be preferred over free evaluation of evidence — was no longer considered important and, therefore, only certain residues and details of it, such as the purgatory oath and the abolition of the tight rules of witness exception, were considered worthv of further debate. j Insofar as power and legitimacy are concerned, did the legal profession gain or lose in the legal transformations of the nineteenth-century Europe? According to the traditional view, as legal positivism converted the judges into machine-like operating “subsumption automats” for the service of the liberal Rechtsstaat, they lost.-^^ Lately, the traditional account has been challenged in two different ways. According to Jan Schroder, the judiciary gained power as the nineteenth century matured, in three ways. First, courts gained constitutional control over the administrative apparatus. Second, the Interpretationslehre began to place an increasing emphasis on the judge-made law {Richterrecht), and third, legal rules of proof were abandoned. All these phenomena, for Schroder, tended to Increase the judge’s freedom vis-a-vis the statute. Regina Ogorek evaluates the nineteenth-century development somewhat difSee Wieacker 1967 pp. 436-440; Kiiper 1967 pp. 236-257. Schroder 1985 pp. 32, 68-86. 16
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