237 16. Modern Lawand the Lawof Proof What changes did legal procedure go through as premodernism passed into modern law? The question can be approached from the point of viewof court organization and that of the law of proof. The Enlightenment demands and their realization concerning court organization are well known and need no further elaboration here; suffice it to say that during the course of the nineteenth century, the general tendency was away from specialized courts to general, hierarchically organized courts and towards an independent and stable judiciary. The development of the judicial organization ran parallel to that of state administration in general: both rationalized and bureaucratized. Finnish legal procedure took a lengthy time to mature, and it is not quite finished even today. The fiercest battles concerning legal procedure have been fought about a court organization; in 1993, city and rural courts were unified into one single lower court.^ But howis the law of proof connected to the modernization of law? I should like to approach this question from the point of view of rational modern bureaucracy in general and claim that free evaluation of proof emerged as a modern solution to problems of evidence. It was one of most important tasks and features of the nineteenth century bureaucratization of state administration that it performrationally and efficiently.^ The modern state was based on the legality ascribed to law, and more exactly the positive law enacted by a representative parliament. The distinctive feature of modern law is its aspiration to effectively determine social development. Instead of being sporadic, contingent, and coincidental, modern law works systematically, rationally, all-encompassingly, and effectively. The effectiveness of the lawis based on the fact that it is the principal tool that modern administration works with. The modern state is a state of law, Justizstaat. Is it not illogical, then, that within the realm of the law of proof the free eval- ' On the reformist attempts of the late 1800s and the early 1900s, see Nousiainen 1993 pp. 472— 507, 534-569. ■2 To Weber, the Herrschaftsordnung of the first half of the nineteenth century already conformed to these goals. However, Tiihonen regards the first half of the 1800s as the period of “patrimonial bureaucracy.” The term suggests that no radical leap towards modernity, legality, and rationality was taken but rather that modern principles, such as legal equality, the derogation of estate privileges, and the protection of property, were not realized until the end of the century and the beginning of the twentieth century. In patrimonial bureaucracy, such as in Germany or Finland in the first half of the nineteenth century, ordinary people could not, in the modern legalistic sense, rely on the law. The administrative machinery of the patrimonial bureaucracy still operated arbitrarily, ineffectively, and often unjustly. The subjects did not obey the Herrschaftsordnung because it was legal, but because of customand tradition. Patrimonial bureaucracy was, thus, a transitional period from absolutism to modern bureaucracy based on legality. Tiihonen 1994 (a) pp. 203-208.
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