29 tio) did not have procedural effects; those depended on the outcome of the torture and on the subsequent judgment which could comdemn or acquit.^® A forced confession had to be reiterated, ratified, in court afterwards.^' If the accused refused to ratify his or her confession without producing convincing counterevidence, the torture could be renewed one or more times. Judicial torture formed an integral element of the system of legal proof. In fact, without the possibility of recourse to torture, the systemwould have been difficult to imagine. Given the strict requirements of full legal proof, it was judicial torture that offered at least some likelihood of arriving at full proof and, thus, imposing criminal liability in cases of serious criminality. It is commonly said that it was with the official control of serious criminality that criminal law as a distinct entity actually emerged''^; it was for this kind of criminal law that legal proof and inquisitorial procedure were first intended. As state centralization took further steps in the early Modern Age, the medieval picture of criminal lawchanged: the state judicial apparatus began to intervene petty crime more intensely and more effectively, and the scope of criminal lawwidened.The lawof proof, as will be shown, followed these developments. There is another important connection between the medieval statutory theory of proof and the contemporarv substantive criminal law. In his classical work on the medieval criminal law of the church,'^^ Kuttner demonstrates how medieval canon lawyers, while seeking to determine the limits of guilt determination, developed a doctrine according towhich ecclesiastic judges could never reach the “actual kernel of guilt that consisted of an inner act.” Unlike God, a judge - in his human imperfection - was unable to look into the soul of a wrongdoer {eedesia de occultis non iudicat). In order to ascertain the degree of guilt pertinent to a criminal deed, therefore, the judge had to be content with outer signs {signa exteriora, circumstantiae, indicia).^^^ These outer signs, then, were of the kind that cc^uld be observed directly by the senses; only indirectly did the signa exteriora speak of the “invisible kernel of guilt.Thestatutory theory of proof matched this conception of criminal guilt perfectly: dependent Ibid. pp. 88, 155. S' Ibid. pp. 105-106, 117. s- Ibid. pp. 125-127. S’ Klcinlicyer 1984 pp. 9-10; C.irb.isse 1990 p. 135. S'* Lcnman and Parker speak of a “judicial revolution” taking place in early modern Europe, see Lenman-Parkcr 1980. S’ Kuttner 1935. It was Kuttner’s work - based on systematic research of medieval sources - that rid canon law scholarship of the influence of the Historical School. Before Kuttner, canon lawyers had used historical arguments ahistorically, as legitimation for the positive law. Kuttner’s book remains the standard work in the field of ecclesiastic criminal law. See de Mortanges 1993 pp. 150-151. s^’ Ibid. pp. 24-25. S7 Ibid. p. 26.
RkJQdWJsaXNoZXIy MjYyNDk=