87 to even talk of a “theory” when referring to the Swedish statutory theory of proof. And yet, the Swedish scholars who brought the main legal rules of proof to Sweden - Olaus Petri, Ralamb, Kloot, and Stiernhöök - had received their education in the renowned German and Dutch universities and were thoroughly learned in the works of the most authoritativeauthors such as Menochius, Mascardus, Carpzov, Brunnemann, and Wesenbec. Although highly educated, the Swedish authors were writing for relatively unlearned readers. All the major seventeenth-century legal writers were, first of all, predominantly judges active in practical judicial life; they were not primarily university professors. More than anything, the works of the Swedish writers were guidebooks intended to be used by law-readers and judges with no or poor legal training. Therefore, the sophisticated theories of ius commune would have been out of place; they would have been uncomprehended and wasted. Hence, the subtlv formulated divisions and definitions of indicia, presumptions and the theory of poena extraordinaria never made their way into Swedish legal literature.’-'’'^ In Sweden, no distinction was made between petty crimes {delicta levia) and serious crimes as to the amount of evidence required for conviction. The rudimentary character of the statutory theory of proof in books was refleeted in the legislation as well. Partly, this can be explained by the same reasons as the elementariness of the legal literature: a judiciary that heavily relied on a lay element could not have absorbed sophisticated theories of proof. Instead, the rules needed to be succinct and precise to succeed. Nevertheless, the institution of absolutio ab instantia and that of confessional imprisonment were incorporated into the Lawof 1734. But when the lawof proof is set into a larger sociopolitical context, another reason for the simplification of the legal rules of proof emerges. This reason does not conflict with, but rather complements the first one. The lawof proof, as stated repeatedly in this study, is a way of overseeing and regulating the judiciary and of determining the limits of its action. Especially in Sweden, where the level of legal learning in the courts was low, simple rules with the least possible amount of complicated technicalities must have seemed more effective for achieving control. The ways of avoiding the rigidity of the legal rules of proof found their way into Swedish legal practice and legislation as well.'55 According to Munktell, verv little of the definitions of gcncr.tl .tnd special indicia of German-Roman juristic writing is seen in the Swedish law preceding the Law of 1734. Munktcll 1940 p. 132. That the conclusion is valid for the law of proof in general, including the post-1734 law, hecomes clear when, for instance, Carpzov’s elaborated doctrine is compared to Nehrman’s. See Carpzov 1684 III pp. 152-238 (for the indicia, pp.176-208) and Nehrman 1759 pp. 163-187. The law faculties at the universities were small, mostly staffed by one or two lawprofessors onlv. Unlike elsewhere in Europe, where lawprofessors were in close connection to practical legal life and - through Aktenversendung — judicial power, in Sweden professors of law remained detached, even by physical distance, frompower. See Björne 1993. A cultivation of a viable legal science was difficult in those circumstances.
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