120 proof. The basic structure of the old systemwith its categorization of evidentiary findings evidence alone sufficed as full proof was still difficult to meet.*° left in place, and the requisite under which circumstantial was The Negative Theory of Proof: Feuerbach, Zachariä In Filangieri, the negative theory of proof was combined with a systemof lay judges. In the pre-1789 philosophical and legal thinking, this combination remained unique, and I have not been able to locate any representatives of it in the nineteenth-century German legal literature either. The negative theory of proof in itself did, however, act as an important bridge toward abolishing the statutory theory of proof. Through the work of P. J. A. Feuerbach, Filangieri’s negative theory of proof came to play an important role in Germany at the beginning of the nineteenth century. For Feuerbach, criminal jury trial was indispensable in a democracy, such as France, as a counterbalance to the rulers. However, institutions could not be directly transferred from one country to another. Since the jury was essentially a democratic institution, it made no sense to adopt it in a constitutional monarchy, such as the German states, in which the freedom of the nation was personified in the constitutional ruler. If the jury were adopted in such a state, the monarch would be defending against himself (“eine Verteidigung des Regenten wider sich selbst”). This would run counter to the spirit of the constitutional monarchy. When governmental power was undivided (“unter einer ungetheilten Regierungswalt”), a jury was clearly unjustified.’* According to another writer, juries were particularly vulnerable to influence by the political elite, and could therefore be used as tools of arbitrariness.'- For Feuerbach, the essence of the bourgeois state does not lie in the right to participate in the decision-making, but it consists of essentially bourgeois rights: the right freely to acquire possessions and to enjoy them(“ungestör zu erwerben, sicher zu besitzen und ruhig zu geniessen”). Acitizen of a bourgeois state, in which power is undivided, is content with paying taxes and, thus, financially supporting the courts; he does not, however, wish to be bothered with actually running the courts himself! In such a state, a professional judiciary is the most appropriate solution. The conventional viewholds that Liigenstrafe, Verdachtsstrafe, Ungchorsamstrafe, and Indizienlehre were developed as a functional response to the abolishment of torture. See Krieter 1926 pp. 8-9; Walter 1979 p. 61; Stichweh 1994 pp. 270-271. Cf. Langbein 1976, according to whomjudicial torture was abrogated becausepoena extraordinaria had actually taken over much earlier, in the seventeenth century. *' Feuerbach 1813 pp. 46, 56-57, 64-65, 74; see also Zachariä 1846 p. 286. Stemann 1847 pp. 418-424. Feuerbach 1813 pp. 75-77. von
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