106 als ... menschlich-lehendiger Repräsentant der Rechtspflege sollte ... dutch einen logisch-automatischen Gesetzesvollzugsmechanismus ersetzt werden ... With Montesquieu, the Italians Cesare Beccaria^ and Gaetano Filangieri" adopted a negative stance toward statutory interpretation. The French-Italian mechanical image of the judge rested essentially on three pillars: the prohibition of legal interpretation, the legislative referral {référé législatif) and the idea that, by using a casuistic method, it was possible to codify law so perfectly that law would no longer require interpreters.^ But there was more, for the wish to limit the judiciary’s interpretative powers led the Enlightenment philosophers to take a stand on the organization of criminal procedure as well. At this point, their thoughts diverged along two paths that are later found in the German and French nineteenth-century discussions concerning theories of proof and the jury (see Chapters 7-8). Beccaria, in his “Dei delitti e delle pene” (1769), favored a kind of free evalnation of evidence. However, a priori divisions of evidence into scholastic categories still persist in his writing. As a remnant of the past, Beccaria divided evidence into perfect and not perfect, thus implyingperfect and less perfect categories of knowledge. By ruling out the possibility that the accused was not guilty, perfect evidence sufficed alone as proof. In order to prove the accused guilty, imperfect evidence had to occur in sufficient amounts; one piece of this kind of evidence was not enough. Imperfect evidence could turn into perfect if the defendant was unable to defend himself or herself adequately.^ Clearly, Beccaria’s law of evidence was plagued by a distrust of the ability of professional judges to evaluate evidence. Although he does not expressly demand lay participation in criminal law, Beccaria makes clear allusions to the desirability of juries. For Beccaria, free evaluation of proof was closely attached to Enlightenment values such as freedom and equality. Man had the right to be judged by his peers; this way, justice could be rid of suspicions of partiality. Public trials - and thus, public evaluation of evidence - contributed to the same effect. Laymen could performthe task of evaluating evidence as well as or better than trained professional judges, for “it is easier to feel the moral certainty than to define it exactly.” Following Montesquieu, Beccaria states that if the laws are sufficiently clear and precise, it is enough for the judge to just determine the facts. Good evaluation of evidence stood the control of common sense, and ”5 5 Kiiper 1967 pp. 47, 49. ^ Beccaria forbids the criminal judge to interpret laws which ought to be written clearly so as not to create the need for interpretation. Beccaria 1995 pp. 14-18. ^ Filangieri 1786. ** Kuper 1967 p. 61. Beccaria 1995 pp. 34-35. Ibid. pp. 35—36.
RkJQdWJsaXNoZXIy MjYyNDk=