17 legal practice since written statutes were usually simplifications of those. And thirdly, to talk of a statutory or legal theory of proof seems to contain a slightly positivist, ahistorical bias, a hidden supposition that written laws and statutes were always as rigidly observed as they are today. Carbasse’s choice to call the theory “objective” seems tempting at first sight, but it seems to me that the term“objective” carries a positive connotation I wish to avoid. Because none of the terms is, strictly speaking, applicable to all the epochs and all societal situations where the law of proof developed by the medieval scholars was used, we need either to choose one of the terms and use it to refer to all situations or to use different terms for different times and places, unless one wants to invent completely new terminology, which seems an exaggeration of the terminological problems. Since there is a common feature that unites the law of proof from the twelfth to the nineteenth century - that is, the attempted rule-bindedness of the judiciary -, I find it justified to use only one term, one that best conveys this central quality of the theory. And because this study concentrates on nineteenth-century Finland, where the rules of proof were statutory in the strict sense of the word, I will call the theory “statutory” or “legal” all through the study.-' The Ordeals: Settling Conflicts by Fire and Water Before inquiring into the Roman-canon law of proof such as it stood in the works of late medieval jurisprudence, a brief look into the preceding systemof ordeals is necessary. Robert Bartlett divides the history of ordeals into twodistinct phases: the protohistorical period before approximately the year 800 and the second period - “the heyday of ordeals” - ranging roughly from the year 800 to the year 1200. As Bartlett correctly remarks, the “heyday of ordeals” is difficult to delimit both temporally and geographically, for in some of the peripheral areas the ordeals continued in use into the seventeenth and eighteenth centuries.22 Even in the areas where ordeals were generally not practiced in the New Age (Germany or Sweden), they were widely used in connection with St.itutorv theory of proof undoubtedly strove to render evidence evaluation more objective than the systembased on oaths and ordeals. Nevertheless, although free evaluation of evidence requires a subjective conviction of the judge, it has usually been required that the grounds of the fact decision be properly given so as to facilitate critique; see Walter 1979 pp. 324-326. However, this holds for professional judiciary only, as the French idea of “intime conviction” demonstrates. Despite that, I trv to avoid excessive terminological rigidness. When speaking of medieval or earlv modern times, the term “Roman-canon” is, therefore, employed interchangably with the other expressions. -- Bartlett 1988 pp. 4, 13. For a general survey, see Gilissen 1965 pp. 778-781; for Russia, see Gorle 1977 pp. 85-86.
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