32 novel inquisitorial mode of procedure. Compared to the preceding era of ordeals, the change was fundamental. The idea of restricting the scope of the judiciary to a minimumand of ensuring legal predictability was then cast into the general scientific mold created bv scholastic philosophy, to which categorical thinkingwas characteristic. Aristotelianism, thus, forms the general epistemological background of the statutory theory of proof. In European procedural theory, a distinction was made between different categories of crimes. There were crimes that warranted extraordinary procedure with secrecy, prohibition of counsel and judicial torture; these were the crimes that preoccupied the state most, and the sphere where the requirement of legal proof was most strictly retained. And then, there were less severe crimes which were a matter of ordinary, accusatory procedure. Where lesser criminality was concerned, lesser proof sufficed to condemn. As the sufficiency of indicia to torture, in severe crimes, or to condemn, in lesser one, pertained to the domain of judicial discretion, it is clear that the legal theory of proof was far from being as binding on the judiciary as it mav seem at first sight. Were the proclaimers of the statutory theory of proof successful in their attempts to set clear limits to the evidentiary discretion of the judiciary? To a notable extent they were, but as I have indicated above, the legal theorv of proof entailed lacunae which tended to favor judicial discretion. The doctrinal ambiguity on certain details of the theory was one; the difficulty to statutorily regulate different indicia leading to judicial torture is another one. In the early Modern Age, the discretional elements were even to grow in importance. To that development we shall turn in the chapters that follow. It would, however, be erroneous to suppose that statutory theory would have been similar in all parts of Europe. A part oi per se heterogeneous European ius commune^^ the statutory theory of proof was a set of complicated rules the details of which varied fromauthor to author and statute to statute. The theory did, however, have a clearly distinguishable core, common to all authors - the same common core was, in the seventeenth century, adopted in the Swedish judicial practice as well. The creation and understanding of the statutory rules of proof was made possible by an elevated level of legal learning from the eleventh century onwards; furthermore, because of the increased use of written forms in the inquisitorial procedure and the complicated rules of the statutory theorv of proof, a professional, literate legal corps was needed. This development shall be further In recent discussion, the ide.-i of a uniformius commune, advanced by Going 1982 and lately Zimmermann 1992, has been dismissed as fantasy. See Giarca 1994 (a) p. 11 and Caroni 1994 pp. 91-93.
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