53 in the will to punish for a mere suspicion. Instead, with the growth of poena extraordmaria, a lesser standard of proof advanced alongside the statutory standard of full proof, as kind of a subsidiary systemof judicial evidence. The way the courts perceived the situation now was that the old Roman-canon rules of proof pertained only to the old blood-sanctions, whereas the newpunishments - imprisonment and forced labor - could be based on free evaluation of evidence. In this way, the old principle of ins commune^ according to which delicta levia, petty crimes, could be decided on the basis of subjective persuasion of the trier only, was nowextended to cover a whole newrange of judicial cases.Thus refuting the conventional account,'*^ Langbein claims poena extraordinaria made torture far less important because courts now possessed an alternative method to ensure criminal liability even in cases short of full proof.*^*^ For Hans Schlosser, the growth of extraordinary punishment was an important product of the professionalization of the judiciary: the self-respecting, educated judges could no longer tolerate the rigid scholastic law of proof. But as Schnapper shows, the extension of a judge’s discretionary power ran counter to the emerging absolutist pretensions of the king who wished to control the administration and govern the country effectively by way of ordinances, written law. From the middle of the 1600s almost up to the French Revolution of 1789, the French courts came to be controlled more effectively by the central power. Consequently, the judiciary’s discretionary sentencing powers showed a diminishing trend. From the above, it can be concluded that the observance of the originally rigid rules of proof relaxed significantly in the sixteenth and seventeenth centuries. The relaxation occurred mainly through the institutes of poena extraordinaria and the intermediate types of decision. For Schnapper, the centuries from the fourteenth to the seventeenth mark the “apogee of judicial arbitrary Ibid. pp. 57-58. As starting points, Langbein takes the Carolina and the Ordinance of Villers-Cotterets; in these two statutes the Roman-canon svstem of statutory proof is to be noticed at its purest. In comparison, the Austrian Coustitutio Criminalis Theresiana of 1769 presents a whole new picture: a confession or two competent witnesses arc still required for a death sentcncc, but when full proof is not obtained, the judge is given the competence to decide whether to free the accused or whether to sentence himto an arbitrary punishment {poena arbitraria, poena extraordinaria). This could be done in two cases: when evidence is not sufficient to justify torture and when confession cannot be obtained through torture. Langbein’s central thesis is that the crucial change in the law ot proof must have happened between the two centuries that had passed between the Carolina and the Theresiana. Langbein’s point thus shatters the widely cherished mvth of the Enlightenment philosophy’s crucial importance to the abolition of judicial torture. See Mauss 1974 pp. 6-7, according to whom the abolition of torture made Liigenstraje neccssary; sec also Stichweh 1994. ■*** Langbein 1976 pp. 49-55. Studies on local practise confirm this, supra note 43. Schlosser 1988 p. 33. Schnapper 1974 pp. 98-100; Bell 1994 p. 50.
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