221 “getting inside the accused’s head.” In other words, the legislator presumes that the courts already have adequate evidentiary standards at their disposal. If classical criminal law and free evaluation of proof had something in common, it was modernity. In premodernity, legislation sought to direct the judiciary by casuistic criminal statutes and legal rules of proof. When the facts of a case were established, the judge normally had but one punishment to choose from. To complement the former, analogy was widely used; the latter, in turn, could be gotten around in various ways. Leuteration was possible in cases in which sanctions provided by the statute seemed inappropriate to the court. In modernity, all these residues, formerly left untouched by legislation and belonging to the realm of judicial practice, were brought under the state legislation. In order for this to be possible, enclaves of judicial discretion were created within the positivistic system. As legalistic ideology gained ground, punishment scales replaced the fixed sanctions, and free evaluation of evidence brought the judiciary’s evaluative activities, formerly practiced on the outskirts of the law, into the approved realm. Conclusion Fromthe 1830s to the end of the nineteenth century, the structural definitions of crime grew more and more detailed. Especially, the wealth of detailed divisions and subdivisions on the side of the subjective Tatbestand of crime rendered the conceptual apparatus of criminal legal dogmatics considerably more multi-faceted than it had been at the beginning of the nineteenth century. Just as the law of proof went through a subjectification,^^ so did criminal lawdogmatics as far as the structure of crime was concerned. Obviously, punishment scales were necessary to match the different degrees of criminal culpability produced by legal dogmatics. On “Siibjcktivierung" of the law of proof, see Stichwch 1994. An obvious parallel to this development can be found in the development of the lawof torts. Just as in criminal law, the tort statutes of the Swedish Law of 1734 were casuistically formulated. This legislative technique suited the prevailing theory of proof well; the casuistic Tatbestaudmerkmale were practicalK' designed for the legal theory of proof. An example is MS 29:2: “If someone shoots with a gun, or with an arrow towards a target, or towards an animal, or birds, in a place where [such activit\ ] can lawful!)’ take place, and where one could not expect to find people; or if one throws a stone, a pole, or something else, thus killing someone; if it can be proven that the killing occurred out of negligence, without [the accused’s] intention and will; let himpay a fine of twentv thaler, to the plaintiff alone.” (“Skjuter man med bösso, eller båga till måls, eller åt djur, eller fåglar, å den ort det lovliga ske må, och där man ej tänka kunde folk före vara; eller kastar man å sådan ort sten, stång, eller vad det helst är, och får där nägor död av; kan då prövas, att dråpet av våda, utan hans uppsåt och vilja, skett är; höte han tjugo daler, målsägandens ensak.”) See Hellner 1973, pp. 3-4. Except for Kivivuori’s study of 1969, the history of Finnish tort law remains practically unwritten. It seems clear, however, that the principle of negligence came to dominate the Finnish law
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