80 proof consist of? How were the decisive lines between the categories to be drawn? As we have seen, legal literature did not offer considerably more counsel to the courts in their practical work. Legal Practice: Evading the Rigid Rules Ahsolutio ab instantia and poena extraordinaria, were innovations intended to remedy the practical shortcomings of the statutory theory of proof. Although these ways of evading the rigidness of the statutory theory of proof were prone to increase the judiciary’s arbitrary faculties, the (lower) courts could, in a centralized state - despite the use of these institutions — be controlled rather effectively; therefore, ahsolutio ab instantia 3.nd poena extraordinaria were allowed to flourish, although not actively promoted. The desire of the higher courts to control the lower ones, or the wish of the central government to keep all of the judiciary on a leash, was not, however, the only motivation behind the establishment of the legal theory of proof. That would be all too simplified and one-sided an explanation, for the law of proof cannot be treated separately from the material criminal law. Above, I have claimed that the modifications to the legal theory of proof were introduced in France and Germany as important parts of the so-called “judicial revolution.” In Sweden, it is in the seventeenth century, the era of the reception of the legal theory of proof, that the “judicial revolution” has been placed; it is then that the punitively oriented state justice gradually vanquished the local domination of justice.*-^ From the end of the sixteenth century onwards, private settlements to avoid feuds were called to an end and replaced by state retribution. In the seventeenth century the letter, although not necessarily the practice, of criminal lawwas made more severe. The lawof proof is not an end in itself, although a rationalization of a legal systemdemands that the judiciary’s decisions be predictable. It seems reasonable to suppose that in order for the criminal control systemenvisaged by the seventeenth-century Swedish reformers to function properly, in order for it to cover a maximumamount of deeds deemed worthy of social control, a more rational systemof proof was needed. Inthe seventeenth century, such a system was available to the makers of the Swedish judicial revolution. Called legal theory of proof, it gained ground as the century advanced. As it turns out, the adoption of absolutio ab instantia and poena extraordiSundin 1992 pp. 447—152; Österberg 1993 pp. 219-221; A.tlto 1996; on the role of the early modern state in the “disciplining process,” see Österberg 1991. ’-■* Ylikangas 1976 (a) p. 136. See Thunander’s account of the Göta High Court practice in the 16C0s, Thunander 1993 pp. 72-90. 124 125
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