222 Second, the emergence of punishment scales and the differentiation of degrees of culpability, through accentuated emphasis on the subjective elements of crime, both seemto point to an attempt to create sanctuaries of judicial discretion into a legal system otherwise increasingly dominated by a legalistic, positivist ideology. The subjectification of the structure of crime (the differentiation of culpability) and the introduction of the punishment scales seem to have largely come to substitute for the seeming loss of judicial arbitration that the development towards legal positivism has generally been taken to have meant. What did the transformation and modernization of criminal lawin the nineteenth century mean for criminal procedure? First of all, it is apparent that the lines of development are parallel for both branches of law. Just as the nascent Finnish criminal juristic writing began to show the first signs of subjectification in the 1830s (W. G. Lagus), discretionary elements also start to appear in the practice of all judicial instances as they evaluate evidence. On the level of judicial practice, the idea of punishment scales was not a complete novelty of the 1870s; in fact, it had already probably been introduced into the practice by leuteration. Second, as the criminal deed was further divided into subjective and objective parts in Finnish juristic writingin the 1850s and 1860s —to which the doctrinal and the legislative efforts of the same decades correspond - there was also a decisive turn in the development towards free evaluation of proof in the 1850s and 1860s. It seems obvious that in order for the subjective elements to be able to gain significance as constitutive parts of crime, subtle differences in human intentions need to be perceived and valued. For this purpose, the legal theory of proof was all too unrefined an instrument. In order to establish the objective elements of crime, the legal theory served well, but it left the judge helpless when he was to decide whether, for example, the accused did or could have anticipated the results of his or her deed. To do that, evidence had to be evaluated freely. As the subjectification of criminal law took further steps, the systemof legal proof gradually became more and more incompatible withit. Without evaluating evidence freely in order to draw conclusions about the intentions of the parties subjective elements of crime could not fully be established. In Finland, of torts during the nineteenth century. In legal literature, Robert Montgomery mentions guilt (ineluding intentionality and negligence) as a general requisite of tort liability in 1889 Montgomery 1889, p. 683; Wilhelmsson 1986 p. 114. Indeed, it seems feasible that the breakthrough of the principle of negligence should have occurred in the Finnish law of torts during the second half of the nineteenth century, for the law of torts borrowed its dogmatic constructions of guilt fromcriminal law. Just as in criminal law, the introduction of this kind of subjective construction would not have been possible, should the legal theorv of proof have been adhered to closelv. On the legislative development of the tort law in the Finnish Criminal Law of 1889, see Kivivuori 1969.
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