Evolution of Proof in Criminal Law: Frankish Era to Ancien Régime

Extract

[...] The Criminal Ordinance of 1670 under the Ancien Régime codifies the inquisitorial procedure, legalizing torture and hierarchizing evidence. However, in the 18th century, the philosophers of the Enlightenment (Diderot, Voltaire, etc.) criticize this procedure and denounce torture and the injustices caused. In fact, these two Enlightenment philosophers engage in the rehabilitation of victims of judicial errors such as in the case of 'Calas'. The preliminary question aimed at obtaining confessions from the accused is therefore abolished in 1788. Between the 5th and 18th centuries, the evidence therefore passed from a system dominated by religion to a much more structured and therefore much more rational system. [...]

[...] Subject: Proof in Criminal Law, from the Frankish Era to the End of the Ancien Régime. Proof is a fundamental element in criminal law. In fact, it allows for the demonstration of an individual's guilt or innocence. The forms of proof between these two eras, the Frankish era and the Ancien Régime, have constantly evolved. This evolution is explained by different factors because, between these two periods, proof in criminal law first passes from an archaic system dominated by religious beliefs and private revenge to a rationalized and state-regulated procedure. [...]

[...] Justice is rendered locally in the form of a 'mallus', a tribunal presided over by counts, which determines the people who must undergo the 'judgment of God'. The procedure is accusatory here because it is up to the accuser to demonstrate that he is innocent. Civil and criminal matters are not really distinct, and private revenge (faida) is admitted in the most serious cases, such as homicides for example. Religion occupies a fundamental place in the modes of proof here. [...]

[...] The state's encadrement towards the rationalization of proof (12th - 18th century). The inquisitorial procedure influenced by the Church from the 12th century leads to a transformation of justice. The judge is in search of the truth, and no longer serves only to arbitrate a conflict. Torture is here a legal means of proof, and the confession that follows becomes the queen of proofs in proceedings. Indeed, torture is used here to obtain a confession. The Ordinance of Saint Louis in 1254 reinforces this inquisitorial procedure. [...]