190 teenth-century homicide. On the other hand, in 1850 we are already close to the crucial period of transformation in theories of proof; the coming change may already be perceived here. Modern Interpretations But howmuch roomfor discretion did the statutory theory of proof, according to modern writers, leave the judge? We have seen above that the Law of 1734 ascribed importance to circumstantial evidence in various situations (PS 17:30, 32, and 37). Some modern scholars have, thus, advanced the point that the legal theory of proof was scarcely different from free evaluation of evidence. Inger’s empirical study of the period of legal proof shows that evidentiary evaluation was quite free where these paragraphs were concerned. Thus, according to Inger, “more than half a proof” was established rather subjectively; in addition, the distinction between “full proof” and “more than half a proof” was blurry. Inger concludes that the legal theory of proof does not seem as mechanical “as often depicted in works of procedural law.”^° Lindell argues that the difference between the lawof proof in the 1734 lawas compared to the present system of free evaluation was not significant; more than anything, the law obliged the judge to present the results of his proof evaluation using the legal terms of half a proof and full proof. According to Lindell, comparable categories are used to describe the results of evidence evalnation even today, such as “probable,” “proven,” and “obvious” {“antagligt ” “sannolikt ” “styrkt”, and “uppenbart”) Stening goes as far as to state that the legal rules of the Law of 1734 were “rules of thumb” only, and that they hardly ever forced the judge to decide against his conscience. Positive rules obliging the judge to convict against his conscience were, for Stening, virtually non-existent, and negative rules — those preventing the judge fromconvicting in the absence of full proof - were of limited applicability only.^^ For Stening and Lindell, then, no essential difference exists between the legal theory of proof and the free theory of evidence. Did the Law of 1734 differ from the modern free evaluation of evidence in any important sense? I think it did. There are various shortcomings to the views of those who seek to reduce the differences between the theories to a minumum. Initially, I shall set aside considerations of judicial practice and concentrate on statutory law only, bearInger 1976 (b) p. 187; for the witch-craft cases likewise Ankarloo 1971 p. 242. Lindell 1987 p. 89. Furthermore, Lindell ponders on the question of whether the law entitled the judge to break the requisite of the criminal law paragraph into pieces, each of which would require their own two witnesses. Lindell answers negatively, because this way the judge could, breaking the requisite into pieces arbitararily, totally free himself of the restraints of the legal theory. Ibid. p. 77. Stening 1975 pp. 11—31.
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