The Development of the ‘Modern’ Criminal Law of Evidence in English Law and in France, Germany and the Netherlands: 1750–1900

Abstract

Abstract In this article a comparative historical analysis is given of the development of the criminal law of evidence between 1750 and 1870 in, on the one hand, English law and, on the other hand, in the continental jurisdictions of France, Germany and the Netherlands. The main argument is that, although there were significant differences, there were also important similarities in the development of the criminal law of evidence among these jurisdictions that so far have largely gone unnoticed. The article focuses on the ideas underlying the reform of the criminal law of evidence. It will be argued that there were in particular two important ideological changes in the seventeenth and eighteenth centuries that shaped the reform of the criminal law of evidence. For lack of a better term, these developments are called the ‘political-constitutional discourse’ and the ‘epistemological discourse’. The epistemological change consisted of the adoption of a probabilistic conception of the certainty that was required in criminal cases. The term ‘political-constitutional discourse’ is meant to designate the general process of rethinking the relationship between the state and its citizens that took place between the seventeenth and nineteenth centuries.