257 are taken to lie behind the transition fromthe systemof legal proof to the free evaluation of evidence, as I take themto be, then these explanations fit Finland as well as the countries I have used for comparison. The general, deep-structure explanation fails, however, to account for the concrete forms that the transition took in Finland. Although it provides the general background, the deep-structure explanation offers no key as to why the development of the Finnish law of proof, in some important aspects, followed its own paths and diverged from the way the events unfolded in the countries under comparison. In several ways, the development of the Finnish law of proof differs from that of France and Germany. First, Finland shared (and still shares) with Sweden a lay-dominated legal tradition. For the law of proof, this had important consequences. Because of the important lay element, as we have seen, Romancanon rules of proof were never thoroughly accepted in the lay-dominated lower courts. Even by the higher courts, the rules of proof were often given a rather flexible treatment. Therefore, the transition to free evaluation of evidence occurred gradually, less painfully and almost unnoticed in comparison to other countries. All in all, it was a smooth change. Second, in Finland — unlike the other countries, including Sweden — the question of evidence was, from the start, almost completely divorced from the question of juries and the modern principles of orality and immediacy. In fact, due to the virtual lack of political liberalism, juries were hardly discussed at all in Finland. A further difference fromSweden, the third point, is that at the time of the change a forumfor legal debates was only being formed: no legal journal and very little legal literature existed before the 1850s and 1860s. Fourth, instead of a strong Supreme Court capable of directing legal practice, as in other countries, the head of the Finnish court hierarchy consisted of the relatively weak JDS, whose decisions were not even published. To sum up, the transition to free evaluation in Finland occurred quietly and smoothly. The change, compared to France and Germany, was less abrupt and less violent. If any turmoil took place in the inner circles of jurists, for the lack of a forum for debates, and for the nonexistence of an efficient highest instance and legal literature, the dissension remained hidden. Lay domination, a particular characteristic of the Finnish legal procedure, not only means that laymen were represented in the judicial decision-making through the nämnd system. Moreover, up to the 1850s, the lower court judges more often than not were without legal training. In comparison to the elaborated body of continental legal literature from the Middle Ages onwards, there was very little academic legal writing (in Sweden and) in Finland. The sparse legal writing usually took the lay character of the law into consideraIn the canon law procedure, the statutory rules of proof were abolished by the Codex of 1869, Meile 1925 p. 135. The change is reflected bv the legal literature, cf. Gross 1867 and 1880.
RkJQdWJsaXNoZXIy MjYyNDk=