7 - Reforms for More Legal Equality, Justice, and Public Openness?

Summary

THE REFORM OF CRIMINAL PROCEDURE: THE PALLADIUM OF FREEDOM

The reforms introduced in Electoral Hesse and many other states of the confederation in 1848 introduced major changes to the code of criminal procedure. The inquisitorial trial, conducted secretly and in writing, had managed to get along without distribution of tasks among judges, state procurators, and defenders. In its place, the proposed code of criminal procedure provided for a public trial with functional separation of the court's tasks. The legal reforms were a political issue of the first order – or in the words of contemporaries, they seduced hotheads into engaging in “passionate combat” – and were regarded as a genuine political act, which explains the prominence assumed by the demand for public, oral courts, for example, within the demands of the March Revolution as well as in many individual petitions of the sort addressed by the Frankfurt National Assembly of 1848 in St. Paul's Church. The reason for this politically charged atmosphere was simple: The trial reforms were considered the embodiment of everything associated with a new, more just society based on the principles of equality and uniformity. They became the symbol of a better society that was established in the microcosm of the court and was to hold true in the macrocosm of the entire society. In these new procedural codes – according to contemporaries – far more was at stake than simply remedying “the main evil of our … criminal justice practices, their arbitrariness, their lack of protective forms, of personal freedom” and promoting a legal system based on the principles of equality. It was not only a matter of arousing in offenders “the resolve to improve” without at the same time wounding their “honor and human dignity.” There was also more to it than – as the officials affected repeatedly brought up – “cutting the court's business expenses” or reducing costs. It was about the whole thing, society and the state included. In these debates, a quasi-natural connection was unobtrusively established between a certain legal system and a certain social system. In real terms, this construct meant that the public, oral Schwurgericht trial, the political concepts of the liberals, and a middle-class society still to be built became identified with each other.