44 fahren, led by a learned judge and assisted by twoSchöffen, more and more became the Hauptverhandlung, and the Endliche Rechtstag — in theory, the Hauptverfahren — degenerated to a pure ceremony.^' The importance of legal experts was further enhanced by the Aktenversendung, to which the Carolina gave statutory support. Should uncertainty as to the interpretation of the law arise, the court was to dispatch the case file to a superior court (Oherhof) or a university’s legal faculty for an authoritative decision. The Aktenversendung favored the spreading of Roman law, for it was in the legal faculties that the expertise in Roman lawwas concentrated.-^- The reception of Roman-canon law of proof shows clearly that the reception could not be reduced to a mere copying of mos italicus, but that the rules adopted had to be molded to the local traditions, needs and interests.New legal structures are always built on the existing ones.^'* As Gerald Strauss has shown, Aktenversendung, the diminishing importance of lay judges and the corresponding increase in the importance of a learned judiciary acted in favor of the strengthening central power. Roman lawand jurists were resisted, above all, by those in whose interests it was to maintain the status quo, based on local laws and customs: the peasants and the estates. Roman law became “a trusted weapon in the struggle of territorial princes against secular and ecclesiastical opponents of regional centralization,” and it came to legitimize secular central power ideologically. Like Roman lawin general, the adoption of the legal theory of proof suited the interests of German princes well as they attempted to consolidate their power at the brink of the early Modern Age. With the professional, loyal and rule-bound judiciary increasingly replacing the lay judiciary, the judiciarv’s independence diminished and it was placed under firmer control. However, it took time for the legal profession to professionalize; as Langbein has remarked, the Carolina contains evidence of the drafters’ distrust of the professional level of its users,and, consequently, of their meager level of legal learning. The statutory theory of proof, together with the other procedural features of the Carolina, enhanced the possibilities of reaching material truth and rendered — or at least attempted to do so - the legal proceedings within the German princely territories more uniform. Fromthe point of viewof securing, maintaining, strengthening and rationalizing earthly disciplinary order, all this was extremely important. But there were counterforces at work as well: the Carolina’s Langbein 1974 p. 192. On the Aktenversendung-, see Döhring 1953 pp. 26-27; Schmidt 1965 p. 135; and Dawson 1968 pp. 200-207. Giaro 1994 (a) pp. 10-11. Krygier 1986 and 1988. Strauss 1986 pp. 71-73. Langbein 1974 p. 182. Langbein refers to articles 41 and 43 of the Carolina, where the connection between incendiary material and arson, among other things, is expressly pointed out.
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