The Development of the Criminal Law of Evidence in the Netherlands, France and Germany Between 1750 and 1870

From the System of Legal Proofs to the Free Evaluation of the Evidence
Erscheinungsjahr 2020
ISBN: 978-90-04-41501-0
Verlag: Brill

Buch, Englisch, Band 32, 544 Seiten, Format (B × H): 155 mm x 235 mm, Gewicht: 944 g

Reihe: Legal History Library

This book describes the development of the criminal law of evidence in the Netherlands, France and Germany between 1750 and 1870. In this period the development occurred that the so-called system of legal proofs was replaced with the (largely) free evaluation of the evidence. The system of legal proofs, which had functioned since the late middle ages, consisted of a set of strict evidentiary rules which predetermined when a judge could convict someone. In this book an explanation is given of the question why between 1750 and 1870 the strict evidentiary rules were replaced with the free evaluation of the evidence. The thesis of this research is that the reform was induced by a change in the underlying epistemological and political-constitutional discourses which together provided the ideas which inspired a significant reform of the criminal law of evidence.

Autoren/Hrsg.

Bloemberg, Ronnie

Fachgebiete

• Rechtswissenschaften Strafrecht
• Rechtswissenschaften Recht, Rechtswissenschaft Allgemein Rechtsgeschichte, Recht der Antike

Inhaltsverzeichnis

Acknowledgements

1Introduction

1.1The Connection with the Criminal Justice System as a Whole

1.2The Theoretical Framework

1.3The Approach and Limitations

1.4The Periodization

1.5The Structure and Content of the Chapters

Part 1: The Theoretical Framework and the Development of the Criminal Law of Evidence in France and Germany

2The Characteristics of the System of Legal Proofs

2.1Introduction

2.2The Abandonment of the Ordeal and the Development of the Inquisitorial Procedure

2.3The Central Characteristics of the System of Legal Proofs

2.4The Thesis of Langbein

2.5Conclusion

3The Theoretical Framework

3.1Introduction

3.2The Political-constitutional Discourse

3.3The Epistemological Discourse

3.4Conclusion

4The Reform of the Criminal Law of Evidence in France 1750–1870

4.1Introduction

4.2The Regulation of the Criminal Law of Evidence in France until 1789

4.3The Reform Discussion on the Criminal Law of Evidence between 1750 and 1789

4.4The Discussions in the Constitutional Assembly (1789–1791)

4.5The Development of the Criminal Law of Evidence between 1791 and 1814

4.6The Criminal Law of Evidence between 1815 and 1848

4.7Conclusion

5The Development of the German Criminal Law of Evidence 1750–1870

5.1Introduction

5.21750–1812: The Abolition of Judicial Torture and the Start of the Reform Debate

5.3The German Discussion between 1812 and 1848

5.4The Discussion on the Criminal Law of Evidence between 1848 and the 1870s

5.5Conclusion

Part 2: The Development of the Criminal Law of Evidence in the Netherlands 1750–1870

6The Criminal Law of Evidence in the Dutch Republic between 1600 and 1795

6.1Introduction

6.2The Regulation of the Criminal Law of Evidence in the juridical Literature

6.3The Practice of the Criminal Law of Evidence in the Dutch Republic

6.4Conclusion

7The Criminal Law of Evidence under Discussion: 1750–1795

7.1Introduction

7.2Criticisms on the Use of Judicial Torture 1600–1750

7.3The Reform-literature between 1750 and 1795

7.4Reforms of (criminal) Ordinances in the Second Half of the Eighteenth Century

7.5Conclusion

8The Criminal Law of Evidence in the Franco-Batavian Period 1795–1813

8.1Introduction

8.2The Reform of the Criminal Law of Evidence in the National Legislation 1795–1810

8.3The Juridical Literature between 1795 and 1810

8.4The Incorporation of the Netherlands into the French Empire 1810–1813

8.5Conclusion

9The Criminal Law of Evidence in the United Kingdom of the Netherlands 1813–1830

9.1Introduction

9.2The Development of the Discussion in the Juridical Literature between 1813 and 1830

9.3The Attempts to Create New Substantive and Procedural Criminal Codes 1813–1830

9.4The Consequences of the Belgian Separation from the Netherlands

9.5Conclusion

10The Criminal Law of Evidence in the Netherlands between 1838 and 1870

10.1Introduction

10.2The Discussion on the Criminal Law of Evidence between 1838 and 1860

10.3The Discussion Regarding the Abolition of the Negative System of Legal Proofs in the 1860s

10.4Changes in the Criminal Law of Evidence after 1870

10.5Conclusion

11Conclusion

11.1Introduction

11.2The Theoretical Framework

11.3The Connection with the Criminal Justice System as a Whole

11.4A Comparison between the Netherlands, France and Germany

11.5The Developments in the Late Nineteenth and Twentieth Centuries

Bibliography

Index

Über Autor(innen)

Ronnie Bloemberg, PhD (2018), performed his PhD between 2014 and 2018 at the Rijksuniversiteit Groningen in the Netherlands. He has published several articles on the history of the criminal law of evidence in Dutch and international journals, and is currently working as a lawyer.