243 those that express “more general and more important” principles and those that do not - have as wide an application. Interestingly, Lagus says the highest judicial instance is in general bound by the opinion of the lower courts. Lagus’s viewon the importance of legal practice reflect well the attitude that I have shown to have prevailed in the Finnish premodern court practice. Lagus ascribes relative freedomto all instances: citv and hundred courts are the ones that formthe basis of a “general opinion” {“allmänna åsikt"), high courts are of “highest reputation” {“högsta anseende”) and “noble solidity” {“ädla konseqvens”), whereas the Judicial Department is in a position to best reflect the “general legal consciousness” {“allmänna rättsmedvetandet”). Moreover, a relationship of mutual influence is to be established between the instances.It is up to all courts, not just the Judicial Department of the Senate, to participate in the creation of law. This is a premodern conception of the courts’ functions. In the 1890s, Robert Montgomery, chronologically the next Finnish treatise writer to approach the subject of legal sources, moved slightly closer to a modern idea of legal sources than had his predecessors. To Montgomery, customary lawwas one of the legal sources. Legal professionals and their courts did not create customary law, but it was articulated by them; in other words, for the customary lawto be valid it had to be ratified by court practice. For Montgomery, legal science was not in itself a source of law; it was up to the legal writing, however, to accommodate old legal rules to present social reality In 1894 R. A. Wrede, who can justly be called the father of the modern Finnish science of procedural law, wrote an essay called “An Attempt at an Interpretation of PS Chapter 1 ” (“Försök till tolkning af 1 kap. R.B.”), in which he presented his opinions on some of the fundamental questions of law. Wrede accepted customary law, even if it was contrary to statutory law, especially if the latter was against “common legal sense.” Like his predecessors, Wrede thought that customary law found its expression primarily through judicial practice. Sometimes legal practice could “unconsciously” be against written law; in these cases it could usually be regarded as interpretation. It is interesting to observe here that according to Wrede, customary law appeared more than anything in the area of procedural law; an example of consciously created customary law was that judicial practice had ascribed to circumstantial evidence the value of full proof.-^ Finnish legal science, thus, adopted a modern position regarding legal sources at the very end of the nineteenth century. It was through the writings of Montgomery and Wrede that legal sources were organized in a more or less hierarchical formthe top of which was formed by statutory law. The developIbid. pp. 138—140. L.igus 1860 p. 23; see also Björne 1991 pp. 138-140. Montgomery 1889 pp. 14-15, 19, 26; see also Björne 1991 p. 169. Wrede 1896 pp. 366-367.
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