courts of appeal in norway a higher court before execution. The establishment of an appellate system dominated by professional judges on all levels –as demanded by Thomasius, Hojer and other leading legal scientists of the eighteenth century – was finally in place. However, the idea that legal professionalization was the best way to achieve legal certainty had already begun to lose much of its persuasive power. The expectation on the law started to change once again. When the approach of the historical school finally also gained ground in Norway in the nineteenth century,107 it gave rise to demands that the law and its application should no longer be detached from the people.108 In addition the good reputation of the public office was more frequently called into question. In consequence, the idea of establishing folk-courts (Folkedomstoler), particularly in criminal cases, became popular. It was argued that the participation of the people in all state powers was an essential precondition for a liberal constitution.109 After a highly controversial debate thelagtingwas reintroduced to the legal system;110 this time as a court of first instance which had to deal with criminal cases exclusively.111 In a new criminal procedure code, enacted in 1887, the question 107 An illustrating example for this new perception of law and its origins as well as its foundations in the will of the people and the history of a particular nation (here Norway) can be found in Svendsen, Jens 1884 (ed.) cf. especially p. 74 ff. The author indicates here that the fathers of the Norwegian Constitution (he refers to the draft of Adler-Falsen) had a vision of the people being to a greater extent involved in the exercise of jurisdiction. However, this had not found expression in the constitution of 1814. (See above Michalsen, Dag 2012 p 8 f.) Another example is a contribution by Quam, Ole Anton’s presentation before Christiania’s liberal club, on 28 November 1884, with the title Om Juryen – Skal vi beholde Enevældets Embetsmands-Domstole eller skal vi gjenindføre vore Forfædres Folkedomstole? Udgivet av Norges Venstreforening [Concerning the Jury, shall we keep the courts of the Ancien Régime or shall we reintroduce our forefather folk-courts? Published by the political party The Left], Oslo. The author began his introduction with the following words: “Legal history shows us that a nation’s administration of justice on the field of criminal law is closely connected to the political constitution and form of government.” 108 It was the political party Venstre that worked particularly hard to this end. See Falkanger, Aage Thor 2007 p. 198 and Michalsen, Dag 2012 p. 9. 109 Svendsen, Jens 1884 p. 76 with reference to the constitutional reforms in Denmark in 1849. He concludes his treatise by quoting Feuerbach with these words: “Edsvorneretter staar som et herligt Kunstværk, simpelt og storartet, opfundet af Friheden, fuldendt af Sandheden” – “The Jury is like a piece of art, simple and magnificent, originated in freedom, full of truth.” 110 See in detail NOU2011:13 p. 32 ff. 111 Criminal Procedure Act (Straffeprosessloven) from 1 July 1887. 306
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