The Perception of ‘Social Danger’ among IUS Commune Jurists: a Reconstruction of the Concept of Malus in Sixteenth and Seventeenth Century Italian and German Juridical Doctrine

Abstract

This article reconstructs the perception of “social danger” among ius commune jurists. Today’s notion of social danger owes much to the philosophical and juridical thought of the Eighteenth and Nineteenth centuries and it is anachronous to use this expression for the period from the end of the Thirteenth to the Seventeenth century. Nevertheless, jurists writing during that period were aware of the existence of individuals that were potentially dangerous because they were mali. Medieval juridical science distilled that awareness into the regula iuris “semel malus semper praesumitur esse malus” found in the Liber Sextus of Pope Boniface VIII. In the construction of this regula, medieval jurists used some of the rules contained in Justinian’s Corpus Iuris Civilis and some of the canons of Gratian’s Decretum. The regula established a presumption of badness on the individual who once behaved badly, i.e. committed a crime. On the basis of this presumption, he was considered likely to behave badly again. This state of malus in ius commune resembles that definition of socially dangerous individuals developed by the positivist jurists of the Nineteenth century. This article uses a Sixteenth century case to reconstruct the debate of ius commune jurists concerning the presumption semel malus semper malus and to show how it operated, pointing out the similarities with the Nineteenth century concept of social danger.