129 Handlung” — the subjective structural elements of crime - is needed. If there is no confession, an “Einblick in die Innerlichkcit” has to be acquired by other means5° - by drawing free conclusions on the basis of all evidence that has been produced during the trial. Likewise for Welcker, there were things relevant to the imputation of guilt that could not be perceived sensually and directly. One had to ask whether the accused had or had not performed the criminal deed “mit innerlichen Absicht, mit bösem, oder dock rnit fahrlässigem Willen.” An inquiry into this type of matters could not strive for natural scientific (nati^ralzcissenschaftlich), mathematical or logical truth.5' It was clearly something less, a sufficient grade of probability, that was sought. As we have seen, the idea of a probability was not a novel one; however, it was only now, at the dawn of modernity, that it began to be equalled to a “full proof” produced by a confession or eyewitness statements. It is in Gncist that the impossibility of combining the modern teachings of criminal justice with a strictly bound system of proof is most fervently denounced. “Dnrch Zergliedernng des Thatbestandes” the statutory theory of proof, although sufficient to clear up the objective Tatbestand of crime, had proved inadequate to handle the subjective element. Witnesses could not prove conclusively that the accused had a malicious will, but instead “der Beweis des inneren Thatbestandes nur aus den Umständen zu entnehmen sei.”^- In 1845, Mittermaier refers to the necessity of accommodating criminal procedure to the changed criminal law. With the latitudinal system of crime, the punishments had become individualized, and to determine the correct degree of culpability {Grad der Verschuldung), oral procedures were needed.-'’^ Undoubtedly, free evaluation c:)f proof served the same goal. The subjectification of modern legal procedure has recently been discussed by legal historians. The subjectification of legal decision-making can be seen to consist of an “individualization of case treatment” {Individnalisierung der Fallbehandlung) and a “differentiation of procedure as a legal recognition process” {Ausdifjerenzierung des Verfahrens als rechtlicher Erkenntnisprozejl). This “mentalization” {Mentalisiemng) of proof is, then, caused mainly by the appearance of free evaluation of evidence. Instead of an analytical treatment used in the old mode of procedure, free evaluation of evidence is essentially hermeneutical. It does not, however, make use of textual hermeneutics, but relies on methods of interaction basically alien to lawyers, such as interpretation c^f oral statements given in a dialogue.In fact, it has been argued that a Köstlin 1849 p. 127. Wclckcr 1840 pp. 104—105. Gnc’ist 1849 p. 64. Mittcrm.Tier 1845 p. 11. Stichwch 1994 pp. 283-293.
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