RS 9

322 The theory of regulating proof was initiated in practically all the continental countries. There existed, however, a certain difference between Italy and Germany on the one hand and France and Holland on the other. In the latter two countries there developed the so-called humanistic or elegant jurisprudence. Notable for this orientation was, among other things, its lack of respect for the late medieval commentators and their strivingto return directly to Corpus luris civilis at the same time that one used Scholasticism’s formalistic dialectic and attempted to systematically arrange the content of Roman law into various categories. Even in Sweden theprinciples of the theory of regulatingproof were successively introduced from the end of the MiddleAges until 1734. The transformation from proof by »oath helpers» {edgärdsmannaprocessen) to the use of a jury {nämndprocessen), a development which was completed with the abolition of the edgdrdsmannaprocessen in 1695, favored the acceptance of the theory of regulating proof. In the proposals, laws and Swedish seventeenth century doctrine, one can clearly trace the acceptance of this theory. Among the foremost promotors of the doctrine one can include Johannes Loccenius, Clas Rålamb, and Claudius Kloot, all of whom are found to have been significantly influenced by the continental legal thought. In Clas Rålamb I believe there is to be found a certain influence from humanistic jurisprudence. Even with other authors of Swedish doctrine during the seventeenth century one finds the clear influence of continental legal science. The same influence of foreign law can be traced in the legal proposals, laws, and edicts from the seventeenth century. One adopts the principle of the theory of regulating proof and along with it the institution of ahsolutio ab instantia. Onethe other hand, Charles XI prohibited the use of torture. Simultaneously, it can be stated that the entire century is colored by a strong Lutheran orthodoxy. In case law the acceptance of the theory of regulating proof made itself felt in such a way that one accepted its teachings on full and half evidence as well as circumstantial evidence. The suspect’s confession was regarded as full proof, although it was not uncritically accepted. The confessed crime should be believable, and the confession should be made by a person in full possession of his senses. This high regard for the confession resulted inthefact that in practiceone was prepared to force such a confession froma suspected person by means of torture. However, torture does not appear to have been especially common in the Swedish courts. On the other hand it often occurred that the decision was jx)stponed, under God’s judgement, when full proof was not available, that is, one applied the institution of absoltuio ah instantia. In witchcraft processes, on the other hand, one resorted to entirely the irrational, includingproof by ordeal, such as trial by water, in order to reach clarity in whether or not the accused had committed a crime. Inaccordance with the principles of the theory of regulating

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