5 When substantive criminal law is taken into consideration, the inadequacy of the legal theory of proof becomes clear. The legal theory of proof only allowed for external factors demonstrable by eyewitness testimony to be taken into account as decisive elements of crime. “Internal” factors, such as intentionality, necessarily remained out of reach of the instruments that the legal theory of proof had at its disposal. Therefore, the theory could not help ending up in serious trouble when, starting within the Enlightenment philosophy and later classical criminal law, a call for the proportionality of punishments according to the degree of criminal intent was raised. According to Beccaria, Kant and Feuerbach, punishments were to be meted out according to the amount of wrongfulness present in the criminal deed. Necessarily, the determination of this wrongfulness required that factors not plain for the eye to see were to be unravelled. In classical criminal law, therefore, the Tatbestand of crime was divided into objective and subjective components. The legal theory of proof was completely unable to cope with subjective components of the crime. If punishments were to be meted out on latitudinal scales to correspond precisely to the harmfulness of the deed and to the amount of the evil-doer’s malevolence, as classical criminalists demanded, then the rough categories of the legal theory of proof did not serve adequately. Instead, to be able to accurately determine the subjective Tatbestand of crime and to meticulously differentiate between the criminal intentions of the wrongdoer, a more flexible and adaptable systemwas needed. Free evaluation of evidence served these needs well. Punishment to crime, evidential decision to fact: both matches, in a parallel manner, reflect the desire of the rising hourgeois state to bestow the individual with the right to his or her own decisions and a corresponding moral responsibility for those decisions. It is not by coincidence that free evaluation of evidence, in the French literature, is often called théorie morale des preuves. The abolition of legal rules of proof and the corresponding emergence of free evaluation of evidence is, then, intimately linked to epithets describing nineteenth-century society such as “modern law,” “liberal bourgeois Rechtsstaat” and “legal positivism.”" It would, therefore, be naive to exclude questions of power from this study. Just as the adoption of legal rules of proof starting fromthe twelfth century cannot be detached from the growth of both closer inspection turn out different. For the magnitude of the task, I have chosen not to include Anglo-American lawin the comparative parts of this work. *■ Modernity in connection to law can be understood in different ways. See, for example Berman 1983 pp. 1-10 and 1993 pp. 35-45, who dates the essential features of modern (or “Western”) law to the twelfth century renaissance of Roman law. In this study, I understand modern law the Weberian way, i.e., as referring to a legal systemrelatively independent of other social and normative systems, a system that functions on the principles of rationality and formality. This kind of modern law dates essentially to the nineteenth century. See Weber 1956 pp. 497-513; Tuori 1990 pp. 7-15; and Nousiainen 1993 pp. 26-31.
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