250 When seen against this development, free evaluation of evidence appears in Finland at a stage when, despite the commencing wave of liberalism- of which free evaluation of the evidence itself was a constituent -, modern theories of legal sources or legal interpretation were not yet formulated in legal literature. Therefore, the judiciary in the high courts and the Judicial Department of the Senate in the 1850s and 1860s operated in these respects considerably more clearly within the premodern legal tradition than as part of modern lawwhich later, towards the end of the century, was to establish the explicitly pronounced superiority of written law. Paradoxically, as the judiciary became tied to a hierarchy of legal sources, it had already freed itself of the restrictions of legal rules of proof. The Modern Aimat Efficacy: ATight Web of Evidence Theories I have claimed above that classical criminal lawand free evaluation of evidence formed a working pair: without the latter, the subtleties of the former could not subsist nor be implemented. The connection established between criminal law and the law of proof is, thus, a technical one. But there is also, as stated above, a deeper-level connection between the two, for both classical criminal law and free evaluation of evidence reflect the transition frompremodern to modern law. The development in both fields of legal regulation reflects a shift froma systemoperating at random and by coincidence to a more orderly pattern of penal control that functions systematically and rationally. The rise of imprisonment as the most important punishment in the penal systemcoincided timewise with the virtual disappearance of capital and corporal punishment in most European countries after the end of the eighteenth century and before the end of the nineteenth.According to Foucault, from the Enlightment onwards the development went toward a more subtle and refined use of penal power to a more detailed mapping of the social sphere in matters of crime control. Crimes had to be accuratedly defined and punishment was to followan unlawful act with a certainty that could not be avoided.After the Kantian turn, penal control becomes subject-centered, subjectified. It has been underlined howprison as a means of reformation of the prisoner goes together with the striving for legal codification, codified punishments and the idea of See, for instance, Foucault 1977, who dates the change roughly to 1770-1850; Spierenburg 1984 p. 206; Melossi - Pavarini 1981 pp. 47-62; Ignatieff 1978 pp. 15-43; and Rothman 1971. Spierenburg, in criticismof Foucault, claims that imprisonment did not suddenly replace capital punishment, but rather that it “represented an experimental phase contemporary to the last days of public executions”; Spierenburg 1984 p. 206. I do not claim, of course, that prisons were an invention of the nineteenth century. Foucault 1977 pp. 73-89. On the idea of “social efficiency” {soziale Effektivität) behind Beccaria’s relative theory of punishment, see Naucke 1989 pp. 45-46.
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