191 ing in mind that the legislator’s intentions, court practice, and the views of legal literature varied considerably fromeach other in the premodern era. There is at least one point where the cited authors coincide: in the absence of full proof, the judge could not convict.It is true, as Inger, Stening and Lindell emphasize, that the judge had rather wide-ranging powers to evaluate freely the statements of “dark,” unstable, or non-coinciding witnesses, but certainly the prohibition to convict short of full proof was of much more practical importance, for the temptation to convict on the basis of circumstantial evidence only must, in practice, have been far greater than the willingness not to convict whenever full proof seemed to be at hand. I hope to have been able to show this with my empirical evidence. Stening’s account is ahistorical and misleading in that he considers the Law of 1734 “only to a limited extent to have expressed the ideas of legal theory of proof.” It remains unclear what version of the legal theory of proof Stening has in mind, for the legal theory of proof has never appeared as an ahistorical entity. As I have shown above, the legal theory of proof was adopted in Swedish court practice — and statutory law — following and remodelling continental models, i.e., the statutory theory of proof in the form it had come to take by the time of the Swedish reception of Roman law. After the reception, the Swedish legal theory of proof did not, any more than its foreign counterparts, remain constant; on the contrary, it changed until its very abolition. The later ius commune law of proof, as has been shown above, left much space for judicial discretion through the use ofpoena extraordinaria and absolutio ah instantia. There is, then, no “pure,” uniform legal theory of proof which would contain no elements of free evaluation and which could have been recepted in a complete manner and pinned down to a particular time. On the other hand, the Swedish authors are correct in maintaining that the Law of 1734 did leave much space for discretion by the judiciary. That is not, however, to say that the lawgiver “smuggled” into the law principles of free evaluation of evidence. Such a suggestion stumbles on the perils of anachronism, for the juxtaposition between free evaluation of evidence and the legal theory of proof only dates to the early nineteenth century. Besides falling into an anachronism, the claimseems unlikely froma legal historical point of view, for we can ask: Why should the lawmaker have wanted deliberately to grant the judiciary wide discretionary powers? On the contrary, as has been shown above, Swedish seventeenth-century legal history is a story of the concentration of central power. As part of this construction, the legal theory of proof was applied to limit the sphere of independent action claimed by the unlearned, lay-dominated judiciarv. In this respect, the Swedish development follows the international one. To be sure, the limitations did not always work in practice; that shifts the discussion to another level, however. Ibid. p. 25; Lindell 1987 p. 89.
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