109 The common denominator in the thinking of Montesquieu, Beccaria and Filangieri is their distrust of the professional ancien régime judiciary, dependent on the absolutist ruler. To remedy the unhappy state of affairs, either the finding of facts had to be given to an English type of jury consisting of laymen, or the legal rules of proof needed to be understood, in the hands of a professional judiciary, as a mere minimum requirement for criminal conviction. In the negative theory of proof, these minimum criteria needed, then, to be accompanied by the judge’s personal and subjective conviction, a moral certainty, of the accused’s guilt. The second component of the theory was needed to guarantee materially correct decisions.2Thus, the negative theory was essentially a product of a rising bourgeoisie within the absolutist state. The negative theory of proof was aimed at protecting the bourgeoisie fromarbitrariness and false sentences in two ways. First, the minimum requirement of proof was intended as a safeguard against the professional judiciary’s arbitrariness. Second, the requisite of subjective certainty was to prevent “mechanical” sentences. As a further safeguard in Filangieri’s theory, the establishing of facts was given to juges de fait representing the bourgeoisie themselves. As the law of proof of the absolutist state, the negative theory of proof understandably found no fertile ground in post-revolutionary France. In early nineteenth-century Germany, however, matters were different. Ideologically and legislatively, the negative theory of proof came to forma bridge fromthe legal theory of proof to the free evaluation of evidence, not only in juristic writing, but also in many German jurisdictions. 7. France after 1789: Ulntime Conviction and theJury After the revolution, the French discussion on criminal procedure concentrated primarily upon the jury. With the jury, all other central elements of modern criminal procedure were put in place in 1791: the principles of publicity, orality and immediacy, and that of free evaluation of evidence. The lay participation, the principles guiding the choice of jurymen, and the powers of the jury were the central issues that were discussed in connection with the Revolution and during the following century. In fact, the institution reflected clearly the French political trends of the nineteenth century: all political groups had their own vision of the institution whose powers, composition, and models of recruitment varied greatly according to the political currents.^3 Hispanic countries) such as it came to he adopted, for instance, in the context of the oligarchic rule of late nineteenth-century Argentina. In the theory of sana critica, free evaluation of evidence is made the main rule at the legislative level, whereas the importance of the legal rules of proof as practical guidelines is still emphasized by the legal literature. See Pihlajamiiki 1993. Walter 1979 p. 64-65, 68-69; Inger 1990 p. 214. Schnapper 1987 p. 165; Lombard 1993 pp. 299-300.
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