La verità processuale nel lungo Seicento.

The aim of the research is the study of the evolution of the probationary paradigm in Continental European criminal procedure, and its relationship with the various fields of knowledge in 16th and 17th centuries. In this transitional time, it is possible to find the passage from procedural (and philosophical) ࢠveritasࢠto procedural (and philosophical) ࢠverosimilitudoࢠ: here we can identify the first appearance of a relative and empirical character in the law of proof, especially in some regional experiences of great interest, like Kingdom of Naples for Italy, and Castile and Aragon for Spain. The overtaking of the self-sufficiency of legal thought was the first step towards the ࢠemersion of modernityࢠ, meant as a new idea of cognition, based on the circulation, comparison and melting of doctrines and ideas oncoming from different disciplines and experiences. A correct report of these phenomena implies the description of the connection between juridical culture, theological inputs and all the developments of the late-modern epistemology about truth and its investigation. The Scientific Revolution and its effects on the juridical thought (e.g. on the law of proof, through the circumstantial doctrines) is fundamental for the understanding of this cultural process. Besides, the contribution of the late-scholasticism to the à,«iudicium secundum conscientiamà,» is another important element towards the overcoming of the medieval idea of legal truth and its ࢠobjective constructionࢠ. In addition, the controversy about the typical instruments of the inquisitorial model, like poenae extraordinariae, is another important element to understand the evolution of relation between proofs and punishments. From late 16th century, the growing attention on the rules and working of human knowledge caused a sort of ࢠslidingࢠin the process-epistemology: from the legal conviction, based on a rigid formalism which excluded every possible subjectivity, the Continental European theories about criminal procedure started to acknowledge a new type of truth-research and construction, based on reason, logic, hypothesis and conscience. Probability and its graduations became the most important ideas for the access to a new kind of truth: relative (but most realistic, if compared to the truth drown under torture); fallible (but most reliable, because entrusted to the intellective activity of human reasoning). This study describes the transition from the legal system of criminal proof to circumstantial evidence. The first part goes through the cognitive discourses set between 16th and 17th centuries in Europe, studying juridical sources like Francisco Sarmiento de Mendoza, Marcello Marciano and Carlo Antonio de Rosa, authors who refused the traditional platform of proofs and sanctions. Besides, it is investigated the thought of Francis Bacon and the taxonomy of mistakes (idola), Lockeࢠs theory of knowledge by degrees, and the explicit transposition of probabilistic assumptions to jurisprudence by Gottfried Leibniz. Their contributions are considered the cultural platform where gradual revaluation of subjectivity in the juridical theory of evidence took place. The second part of the research will include the theological reflections on the meaning of à,«iudicare secundum allegata et probataà,», expecially according to the canonic tradition of Salamanca. Saint Thomasࢠrigorous point of view (à,«Bonus iudex nihil ex arbitrio suo facit: sicut audit, ita iudicatà,») was discussed for a long time by the canon-law Doctores and its content was notably developed, expecially through the contribution of Martin de Azpilcueta and Diego Covarruvias y Leyva. Since then, conscience became a new mean for the activity of the judge, no more the expression of dangerous opinion or mere arbitrium, but safe application of reason. The study aims to demonstrate that the development of the Continental European law of proof, and the gradual decadence of the typical instruments of the inquisitorial model, were possible thanks to the meeting and intercourse between the juridical culture and flourishing thought of late-modern Europe.