56 cial torture remained as a functional part of the system until the eighteenth century. Despite the hollowing out of the system, the statutory theory of proof was still in principle retained. Why did this “revolution of the law of proof,” as it has been called, take place in Europe? It has not been possible to assess a problem as vast as this within the confines of this study, but a hypothesis will help us to place the Swedish reception of the legal theory of proof in the proper context. Above, I have suggested that two currents lie behind the transformation of the law of proof. First, as it ascribes fundamental judicial faculties to courts and, thus, basically defines their independent scope of action, the law of proof is intimately linked to questions of division of power. Above, we have seen that the rise of poena extraordinaria and the other functional equivalents of a full conviction coincide timewise with the emergence of the strong national state and political absolutism in early modern Europe. In the absolutist state, the courts could borrow the state’s authority as a legitimation vis-a-vis subjects of the legal system. The jurists, nowto a certain extent professionalized, can be presumed to have had their own interest at stake as well: the university-trained legal professionals who had began to replace laymen in courts in the late Middle Ages and in the early Modern Age^s were willing to escape the narrow confines of the statutory theory of proof. But the political change alone was not enough, for, second, in order for it to be transformed into a newlegal doctrine and court practice, certain philosophical developments seemto have been indispensable. The rise of rational empirismbrought with it an important epistemological change through the works of authors such as Descartes, Bacon, and Locke. The methodological empirism allowed scientists to break the sharp scholastic dichotomies, such as science/opinion, and allow probabilities into the world of the sciences. Regarding the lawof proof, the rise of methodological empirismcame to offer tools for a (partial) devastation of the Roman-canon law' of proof, based originally as it was on the Aristotelian logic. Third, the law of proof can hardly be treated completely separately from material laweither: fromthis perspective, w^e have seen that the transformation within the system of legal proof toward a more flexible systemsuited w'ell the pretensions of growing absolutismto support its power through harsh criminal law. It is, indeed, no coincidence that the “judicial revolution” seems to coincide with the “revolution in the lawof proof.” Termby Rudolf Stichweh (1994). Dawson 1960 pp. 60-69, 105-109; Diestelkamp 1994 pp. 112-113.
RkJQdWJsaXNoZXIy MjYyNDk=