Смертна кара в осмисленні візантійських юристів

Abstract

Introduction . Today, the legal policy of the modern, first of all European countries, regarding the use of the death penalty as a capital and exceptional punishment becomes more significant. Purpose. It is established in the special literature that for the first time the problem of the death penalty was mainstreamed by the Italian philosopher Cesare Beccaria in his treatise “On Crimes and Punishments”. The goal of the article is to find rudiments of humanization of the penalty in the legal systems of the Middle Ages, in particular, Byzantium. Results. Comments to Section 25 of Nomocanon, proposed by Byzantine canonist of the 12 th century Theodore Balsamon, have been studied. The legal scholar paid special attention to those changes that it would be advisable to interpret as “greater philanthropy”. He formulated his own concept of criminal punishment and his position regarding the death penalty. We have to state the highly developed system of representations by Byzantine lawyers about the basic principles of the criminal law. The purpose of punishment in Byzantium was just punishment for harm and intimidation (preventive function of punishment). We note the existence of a principled refusal to identify the criminal punishment, in particular, the capital punishment, with the death penalty. The position of the canonist Balsamon actually contains the abandonment of the death penalty as a form of criminal punishment in general, which does not meet neither the religious, nor theoretical and practical goals of punishment. The Byzantine legal scholar described the death penalty as “inhumane murder, not criminal punishment”. Conclusion. We consider the thoughts of Theodore Balsamon regarding ineffectiveness, hence the unlawfulness and impracticability of the death penalty, to be unique for the Middle Ages. The opinion of the Byzantine lawyer about the advantages of isolation of the criminal from the society and the duration of punishment seems to be productive.