68 lay element in Swedish courts - especially lower courts, but also high courts — undoubtedly lessened the practical importance of learned jurisprudence. In general, before the emergence of legal positivism in the nineteenth century, legal cases were decided on a casuistic base. There was no powerful modern state to force a hierarchic systemof legal sources on the courts; instead, the hierarchy of legal sources was decided on an ad hoc basis, case by case. It was the needs of the case, whatever they were, that determined which one of the legal sources — statute, custom, precedent, juristic writing, or Roman law- was to be followed.57 And last, the works of Rålamb, Kloot, and Nehrman are, at best, rudimentary. The legal literature did not solve difficult practical problems in courts; instead, the judiciary must have created practices of their own to fill the void left by the virtually nonexistent legal literature. This is one of the peculiarities of Swedish legal history; in the field of the lawof proof no thick books of juristic writing, such as those of Carpzov in Germany or Muyart de Vouglans in France, appeared.58 Therefore, it is ultimately indispensable to turn to legal practice to find out “what really happened” in the Swedish lawof proof. Before that, a few observations on the early Swedish procedural literature will be made. First, it is necessary to return to the time of Gustavus Vasa of the sixteenth century, for here we find the first actual signs of the Roman-canon theory of proof. The first to refer clearly to the Roman-canon rules of proof was Olaus Petri59^ Gustavus Vasa’s Chancellor and close friend; he spoke of the necessity of binding the judge’s deliberative powers by rules of proof. Although a theologian, Olaus was trained in Germany and thus had to be well aware of the ius commune that was making its way into legal practice. For Olaus Petri, the most serious problemin the legal life of his times was the lack For France and Germany and how laymen were driven out of courts there in the sixteenth century, see Dawson 1960 pp. 60-115. 57 Tau Anzoategui 1986 pp. 361-362, 1989 p. 356, 1992 pp. 77-82; 'X’hitman 1990 pp. 7—9; CarBasse 1990 pp. 174-175; see also Hespanha 1992. On the usages of judicial the right to depart from the statutory punishment depending upon the circumstances {drcumstantiae) in the criminal case, see the illuminating article of Lindberg (1984). 5* Hence, Letto-Vanamo criticizes Paasto for “over-interpreting” the seventeenth-century Swedish jurisprudence. See Letto-Vanamo 1994. 5'* Olaus Petri (1490’s-1552) studied in Leipzig and in Wittenberg, worked as the Secretarv of the city of Stockholmin 1524-31 and then as the King’s Chancellor in 1531-33. He was tried for high treason in 1540 for being involved in the “Powder Conspiration” against Gustavus Vasa and sentenced to death. He was pardoned and died as the vicar of Stockholmin 1552. Although a priest by training and mainly known as a religious reformer, Olaus is considered the first representative of Swedish legal literature. Among his works is a commentary of the Municipal Lawof Magnus, intended to clear up old expressions. Ylikangas emphasizes Olaus’s personal history as an explanation for his insistence on legal rules of proof and prohibition of torture, although there is no unanimity as to whether Olaus Petri confessed to the charges under tortureor not. Ylikangas thinks he was tortured; Almquist is doubtful. Almquist 1946 pp. 19, 88-103; Ylikangas 1988 pp. 34-37. On the Rules of Olaus Petri, see Schmidt 1966.
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