107 the latter was less prone to err than the judge in his professional wisdom, which was acquired by formal training." It is important to note that, for Beccaria, criminal law and the relative theories of punishmentwere a means of actively directing and affecting social development. Although mainly known for his humanism and liberalism. Beecaria was, thus, a forerunner of a criminal lawin service of the modern state. This has an important bearing on Beccaria’s lawof proof: to ensure its effective and smooth functioning, criminal law needed a “rationalized” lawof proof on its side. In relation to the matters of evidence, the other strand of Enlightenment thought that was to acquire continuity in the German nineteenth-century discussions and legislation was initiated by Gaetano Filangieri. Like Montesquieu and Beccaria, the Italian philosopher was suspicious of professional judges and their capability of arriving at correct decisions. Like the two other Enlightenment philosophers, Filangieri was a great admirer of the English jury system." In Filangieri’s theorv, two kinds of judges appeared: judges of fact and judges of law. Judges of fact was the Italian author’s term for jurors. Filangieri’s political framework of action was reflected in the hierarchical way with which the election of the jurymen was assigned to the magistrate (the president of the court), who in turn is appointed by the prince.It was up to the judges of fact to decide whether the accusation is correct, wrong or uncertain. In the first case, the accused had to be sentenced to the punishment prescribed by the law; the judges of law decided the legal questions involved. If the accusation was deemed false by the jurymen, the accused had to be acquitted; if the charges, however, proved uncertain, the judgment had to be “suspended” and the accused set free sub judice — a kind of absolutio ab instantia. For Filangieri, the perils of a decision left pending were not as great as those attached to the discretionary sentences {poena extraordinaria).^*^ Filangieri wanted to remedy the problems of ancien regime criminal justice by what later came to be called a negative theory of proof — the termitself does not appear in Filangieri. Before formulating his evidentiary theory, Filangieri laid out his theory of legal truth. Truth and falsity were proposals of which we may be sure or which we may doubt. Certainty, uncertainty and doubt were, however, things that existed “in the spirit only.” These inner feelings varied, then, fromperson to person and were, thus, unreliable. Nevertheless, a moral certitude was an indispensable requisite of conviction, a condicio sine qua non. " Ibid. p. 35. On Beccaria and the relative theories of punishment, see Krumsiek 1989 p. 4. Naucke 1989 pp. 44-45. I'ilangieri 1786 pp. 269-284. Ibid. p. 341. Ibid. pp. 220-223. 17 /W. pp. 207, 209-210, 217. 17
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