54 power.” Schnapper sees a two-fold development. On one hand, concerning the judiciary’s powers of sentencing and punishing arbitrarily, they were on the rise with the growth of the state and state legislation until the second half of the seventeenth century. Fromthen on, the judiciary’s power began to be limited much more. With the law of proof, the development was converse: with poena extraordinaria, the judiciary’s arbitrary powers grewfromthe sixteenth century onwards, and the judiciary retained these powers after the promulgation of the Ordinance of 1670, all the way till the statutory breakthrough of free evaluation of evidence after 1789.^' As in France, so also in the German territorial states the detachment of the judiciary from the rigid rules of proof coincided with the rise of absolutism and the building of the nation-state in the sixteenth century.5- A thorough study of the theme will not be possible here; however, in order to understand the Swedish development, some preliminary observations ought to be made. First, let it be repeated, it seems obvious that the relaxation of the statutory rules of proof coincides with political absolutism. Under absolutism, the university-educated and professionalized jurists partly broke free fromthe legal rules of proof. Todo this, they borrowed the increased authority of the state as a legitimation towards the subjects of the legal system. Second, as Schapper has shown for France,^^ the relaxation of the statutory theory of proof coincided with the attempts at a hardening and systematizing of the criminal justice system under rulers with absolutist pretensions in the early Modern Age.^'* The link between these two phenomena is obvious: an effective system of criminal repression could hardly rely on a rigid statutory theory of proof which often tended to hit its target at random. To produce more reliable and predictable results, and to match the desired wish to render the criminal justice systemless lenient through harsh criminal sanction, a more flexible systemwas needed. Why, then, was the legal system of proof still retained in principle? Could not free evaluation of evidence have been directly substituted for the legal theory of proof? Questions that require an answer to why something did not happen run the risk of producing ahistorical answers; I would, nevertheless, like to Schnapper 1974 pp. 1 lC-111. See Lange 1987 pp. 191-197; Strauss 1986 p. 150; on the differences of absolutism between East German and West German states, and especially on Prussia, Anderson 1979 pp. 250-252; on Prussian absolutism, Tjihonen 1994 (b) pp. 136-140; and on the building of a “well-ordered police state” through law in the Germany of the seventeenth and eighteenth centuries, Raeff 1983. 5-’ Schnapper 1991 (b) pp. 104-105; Schnapper 1991 (c) pp. 132-133. Ample evidence exists on the systematizing of criminal repression in the strengthening early modern states. See ibid.\ Lenman - Parker 1980; for England, Beattie 1986 (although the argument about the law of proof does not, of course, apply here); and for Sweden, Österberg 1991. Another factor that helped to widen the use of poena extraordinaria is the adoptitm of new methods of punishments, such as galley service. Langbein 1976 p. 49.
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