RB 54

PART ONE: The Statutory Theory of Proof and the Making of the Centralized State In the final instance, all questions asked in this study concern one central problem: Why was the statutory theory of proof abandoned by the Finnish legal practice during the latter half of the nineteenth century? The main task leads to several questions that need to be asked and answered. If the statutory theory no longer served a purpose, then apparently the prerequisites that had upheld the theory were no longer there. But what were those pillars which managed to support the statutory theory of proof for hundreds of years, from the late Middle Ages well into the nineteenth century? In order to find out just why the theory collapsed, we need to understand why it emerged and was maintained in the first place. There is no single answer to the question of why the statutory theory endured as long as it did, for we cannot approach the theory en bloc. During the six centuries of its existence, the statutory theory of proof went through different periods and appeared in forms that differed fromone another both in time and space, and it is not useful or necessary to attempt to present a complete picture of all those varieties.' Regardless, a rather extensive comparative work is indispensable; I will, however, concentrate my observations on two interwoven points. The first has to do with the factors that helped maintain the statutory theory of proof, and the second deals more specifically with the historical phase in which the theory was adopted in Sweden. As far as the prerequisites of the theory are concerned, it will first be observed that the statutory theory of proof has always tended to emerge in connection with strengthening central power. In fact, the theoretical approach to legal proof as such emerged as one of the consequences of consolidating political power. It is clearly demonstrated by the way a system of judicial ordeals, oaths and oath-helpers was often replaced by the statutory theory of proof wherever a centralized government was erected. Moreover, it seems that only as national states acquired more cohesiveness with the emerging absolutismin the sixteenth and seventeenth centuries did it become possible and legitimate for the legal institution of poena extraordinaria to appear. It was then that the ' For those interested, Jean Bodin Society’s publication “La preuve, deuxieme partie, moyen age et temps mödernes” (Brussels, 1965) remains the best introduction to the different aspects and historical phases of the theory.

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