239 Finland, as it was through legal practice that free evaluation of proof came to prevail against the provisions of the Lawof 1734, it is important to understand how the relationship between written law and judicial practice was conceived during the second half of the nineteenth century. Strictly speaking, theories of legal sources are essentially a modern phenomenon.'* In the premodern period, the judges had considerably more freedomto pick the legal sources on which they chose to base their decision. There was a wide variety of acceptable legal sources that could be used flexibly to attain desired and suitable solutions. Instead of being systematic, premodern law was essentially casuistic. A vivid picture of howthe legal universe was constituted in premodern law, and what difficulties the modern legal mind faces when attempting to understand it, is given by Tau Anzoategui^: “[A] natural inclination - caused by the [modern] doctrine - makes us inquire what the position [of juristic writing] was, whether it was an independent source of law and whether its role was principal or subordinated ... it is inadequate to search for a rigorous separation and hierarchical order between the different sources of [premodern law] ... They all concurred ... as law was given shape by way of solving concrete cases.” It was, thus, the legal case that premodern lawevolved around. The premodern legal jurist was “distrustful or suspicious of concepts, definitions or divisions that might narrow his scope of action, so that his judgements or valuations did not normally have general application, but instead they were limited to the case under examination.”^ The premodern jurist was, more than anything, interested in solving the particular case at hand; he did not wish to be bound rigurously by a “theory” of legal sources nor did he pretend that his solution reached beyond the concrete case under scrutiny.^ It is logical, therefore, that the contents of ius commune are not easy to define; instead, they vary fromcountry to country and region to region and from one branch of lawto another. CorpusJuris Civilis was not “valid” in the modern positivist sense, nor was Roman-canon law “received” as an original total- ■* In the Nordic literature before the 1850s, no systematic theory of legal sources appears. Björne 1991 p. 22. 5 Tau Anzoategui speaks of derecho indiano, the colonial law in Spanish America; Tau Anzoategui 1989 p. 355 and 1986 p. 361. Since derecho indiano was essentially based on mos italicus and Spanish law, Tau Anzoategui’s description seems valid for premodern law in general. Hespanha (1992, pp. 51-52) calls for a sense of a “historical rupture” between premodern and modern law and claims that the idea of continuity is by no means innocent, but serves the interest of a need to present modern law as the “Omega of a legal civilization.” ^ Tau Anzoategui 1986 pp. 361—362. For an illuminating account on the philosophical premises and different usages of judicial arbitrio in criminal cases, see Lindberg 1984. ^ The vast transformations and the trend towards a systematization of law taking place with and after the seventeenth-century rationalismcannot be dealt with in detail here. See Björne 1987 and Tau Anzoategui 1992.
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