PARTTHREE: Free Evaluation of Evidence in the Nineteenth-Century Legal Literature: France, Germany, Sweden, Finland The Enlightenment, Absolutism, and the Negative Theory of Proof The Enlightenment ideas had a positivistic effect on legal thinking, and especially on penal law doctrine: Beccaria, Filangieri, and Feuerbach began to emphasize the supremacy of written lawas a legal source. At the end of the eighteenth century, however, it was the the preeminent interest of bourgeois legal thinking to ensure the predictability of the law. This led the Enlightenment legal theorists to demand that the judiciary be forbidden to interpret the law.* Thus, the legal thought, although primarily seeking to safeguard the bourgeois interests,^ in fact came into alignment with the interest of the absolutist rulers of the time.^ Undoubtedly, the foremost concern of the Enlightenment thinkers was a legalist one: they sought to find a remedy for the despotic administration of law of the ancien régimc, and therefore the sharpest critique was directed at criminal law. Ideologically, the ultrapositivist tendency to place emphasis on binding the judge’s to the letter of the law is traced back to the French-Italian Enlightenment and above all, Montesquieu. The French philosopher, in his “Esprit des lois,” laid the foundation of the tripartite division of power, thus separating legislative, administrative, and judicial activities. In this scheme, the judiciary was granted virtually no interpreting powers. The judge was to become a “hoHche dc la loi” only, an organ passively converting the law-giver’s will into practical judicial decisions: “... les jiigcs de la nation ne sont ... que la bouche qui prononce Ics paroles dc la loi ...”■* For Montesquieu, individual value judgements were not to affect judicial decisions, or as Kiiper puts is, “Der Richter ' Ogorck 1986 p. 49. - Ibid. pp. 56-57. K. S. Zachariae, tor example, was reluetant to grant judiciary wide interpreration power, for it “eben so sehr mit den Rechten des Souverains, als mit der rechtlichen Freyheit der Unterthanen imWiderspruch steht.” (cited in ibid. p. 57.) Kijper 1967 pp. 60-61. •* Montest]uieu 1961 p. 171.
RkJQdWJsaXNoZXIy MjYyNDk=