Roman Criminal Law Research Articles

Mulier accusatrix in the Laudatio Turiae

Legal sources relating to the imperial period (especially Justinian’s Digesta) show that Roman criminal law allowed women to bring criminal charges only in exceptional situations. On the other hand, to prosecute the murderer of a relative was considered a sacred duty for the members of the victim’s family. Any negligence in this area was perceived as wicked behaviour and detrimental to the memory of the deceased. The obligation to bring a criminal charge, symbolically identified with vengeance (ultio, vindicta), rested with men. The surviving funeral eulogy known as the Laudatio Turiae shows a very different pattern. Its content shows that at the end of the first century BC, it was a woman who accused the murderers of her parents in court and brought about their conviction. The oration makes it possible to initiate an interesting discussion on the real importance of women’s voice in the criminal process and on the social stereotypes that limited their participation in public procedures.

Franco Gnoli e il crimen peculatus: un itinerario storiografico

Abstract The paper aims to review the scientific path developed by Franco Gnoli in his investigations on Roman criminal law through the study experience in the field of crimen peculatus.

Правовой нарратив в легенде о Ромуле

Introduction: the article analyzes the legal significance of the legend about the founding of Rome as illustrated by the episode concerning the murder of Remus, brother of Romulus. This myth, as a legal narrative, preserved the description of facts that corresponded to the logic of Roman criminal law and were constantly updated in the public consciousness. Purpose: the article attempts, from the stance of postclassical jurisprudence, to reconstruct the legal reality of ancient Roman society and the Romans’ understanding of the death of Remus, to analyze the reasons for the stability and the development stages of the narrative tradition. Results: the episode of fratricide, reflected in most ancient sources, is contextually connected with public legal consciousness, which, throughout most of the Roman history, did not condemn Romulus. The symbolic interpretation of the legend is insufficient since it does not take into account the normative enshrinement and positivation of the mythological plot in the Digests. The narrative does not contain a detailed description of the ritual, and therefore Rem’s death cannot be considered a sacrifice. The analyzed legend reflects the process of establishing ancient Roman legal norms, and its content is more of legal than of religious or allegorical nature. Conclusions: the narrative about the death of Remus can be recognized as a source of archaic law. Its regulatory content was expressed in the prohibition to get over the walls or ditch surrounding the city, which served to preserve Roman society and supported the idea of law and order and the inevitability of punishment. The ban itself as well as the sanction for violating it were publicly proclaimed. The preservation of the narrative tradition is explained by the focus on repeated application of the described rule, the violation of which was punished regardless of blood relationship. The myth of Romulus and Remus initially legitimized the archaic criminal law norm, giving it the properties of publicity, universality, and obligation. Evolving in dialogue with the audience, this legend acquired the properties of a metanarrative that personified the inviolability of Roman laws and created the principles of the entire system of Roman public law.

Il sacrilegium negli scritti di Franco Gnoli. Rievocazioni e riflessioni leggendo gli ‘Scritti scelti di diritto criminale’

Abstract In memory of Franco Gnoli, this essay is an assessment of him as a master of Roman criminal law, through an indication of the most important conclusions reached in his research on crimen sacrilegii.

PROBATION: ORIGIN AND FORMATION

The elements of probation that were in Roman criminal law in 450 BC are analyzed. from the moment of the conclusion of the legal act «Laws of the XII Tables», «Justice of the Rus», in which the norms of Rus customary law, the Lithuanian statutes of the period of the XV-XVI centuries, as well as the norms of criminal law set forth in the book of the first volume XV of the «Code of Laws» were codified Russian Empire. The first cases of probation in the USA and Great Britain are being studied, in particular, the first manifestations of probation applied by D. Augustus in the USA, as well as the Law «On Probation for Minors» was adopted in 1901 within the US state, the Federal Law «On Probation» was adopted in the USA in 1925 the Probation of Offenders Act was introduced into the law of England and Wales in 1907. Further steps in the development of probation and its transformation into a fullfledged punishment (its replacement) are consistently analyzed, which can be used in certain cases as an alternative to imprisonment. An opinion is given on the need to divide the history of the development of probation into stages that led to the emergence of the institution and the term probation in the countries of the Anglo-Saxon system of law, as well as the subsequent stages in the formation of the modern model of probation in the world. In the article, the author proposes its own periodization of the stages of development of this institution, in which the first three stages refer to the period of development of the elements of criminal influence characteristic of the application of probation, and the next three characterize the process of the emergence of the concept and the consistent development of the institution of probation. Such stages are proposed to be considered in the following sequence: Starting from prehistoric times and ending with the period of antiquity. The period of the Middle Ages, beginning with the publication of «Justice of the Rus» and ending with the period of application of the Lithuanian charters, which lasted until the first half of the 17th century. The times when Ukraine belonged to Russia as an autonomy (the second half of the 17th – the 18th century). Emergence and implementation in the USA and Great Britain at the end of the 17th century. early 19th century concept of probation. The middle of the XIX-XX, characterized by the development of the institution of probation, the formation of an opinion on the possibility of its application instead of the main type of punishment. Modern period of independence and development of criminal law, in particular the institution of probation.

The Sanction for Parricidium in the Light of Cassiodorus’ Variae – Comments on Cass., Variae 1, 18, 4 in the Light of Roman Criminal Law and Leges Romanae Barbarorum

The traditional punishment for parricidium under Roman law was the poena cullei (“the penalty of the sack”). Its continued use in late antiquity is confirmed by the constitution of Emperor Constantine the Great later adopted in the Theodosian Code of 438 (C. Th. 9, 15, 1). It is not clear, however, whether this punishment was also applied in practice to pars Occidentis in the period after the abdication of Emperor Romulus Augustulus (476). The official royal correspondence preserved in Cassiodorus’ Variae mentions the penalty of exile imposed for fratricide (Cass., Variae 1, 18). The aim of the study is an attempt to interpret the indicated letter of Theodoric the Great, as well as a number of other sources (the provisions of Edictum Theoderici regis and Breviarium Alarici) to reconstruct the penal policy of this ruler towards the perpetrators of parricidium and homicidium.

Criminal law principles in the legends of ancient Rome

The description of the history of early Rome (VIII-IV centuries BC) in the works of ancient authors is usually perceived as a mythological legend, which shifts the focus of scientific discussion to assessing the degree of reliability of the events being told. As a result, the normative-value and legal significance of ancient legends sufficient attention of researchers. The oral and therefore naturally plastic nature of archaic law creates additional difficulties for its modern study, in contrast to numerous and well-studied legislative texts. The author proposes to refer to modern types of legal understanding and turn down strict positivism with the aim of expanding the boundaries of legal analysis, rethinking the legend (on the example of Lucius Junius Brutus), recognizing it as a source of Roman law, and reconstructing its criminal law content. For this purpose, using socio-psychological, historical-legal, formal-logical and other scientific methods, the author singles out that part of the story that was not lost, but was steadily reproduced from generation to generation. The surviving core of the legend remained in history because it carried socially significant information modeling of behavior (behavioral stereotypes) of the ancient Romans. The article shows that children`s execution by the first republican magistrate not only legitimized the right of paternal power (patria potestas), but also proclaimed the priority protection of the public interest (civitas) that became the cornerstone of the Roman legal order. The legend set a special imperative for citizens, shaped their worldview and sense of justice. From the criminal law standpoint, this precedent fixed the standard of both prohibited behavior and retribution for it, i.e., a measure of justice, broadcast the requirements of the inevitability and personal nature of responsibility, laid foundation for the requirement of legal equality of all citizens before the law. Ultimately, the legend set the vector for the development of Roman criminal law, which led to the formation of its principles, many of which are accepted and developed in modern legal systems.

TO THE QUESTION OF GOALS AND OBJECTIVES ROMAN PUBLIC LAW IN THE WRITINGS OF ANTONIO GUARINO

The article will consider the main goals and objectives of Roman public law, reflected in the works of the outstanding Italian lawyer - novelist Antonio Guarino. In his works on Roman jurisprudence, Professor Guarino studied not only Roman private law, but also the concept and content of Roman public law. And also, Professor Guarino in his writings pays special attention to the issue of limiting the powers of Roman magistrates who exercised executive and judicial power. Since the problems of Roman public law are poorly covered in modern legal science, the works of Professor Guarino become relevant for us in the field of constitutional law (in the field of human rights protection). The purpose of this article is to analyze the limitation of the powers of Roman magistrates in Roman public law. The objectives of the article are a brief analysis of Roman criminal law, the study of the nature of magistrate edicts, the disclosure of the role of the people's tribunate in limiting state power. The article will apply the formal legal method, as well as general scientific methods of cognition, which include analysis, synthesis, deduction, induction, comparative method, historical method. In the course of the research, this article will analyze and consider the issues of limiting the powers of public authorities in Roman public law. The results obtained can be used in the field of constitutional law and in the protection of human and civil rights. It should be noted that the works of the Italian novelist Antonio Guarino in the field of Roman public law are of great interest to legal science. His theoretical developments and ideas may be useful for improving the legal system of Kazakhstan.

Filozoficzno-prawne ujęcie kary śmierci w antycznym Rzymie

The article constitutes an attempt to analyze the regulations behind death penalty during the period of ancient Rome, as well as an attempt to answer the question of whether there was a system of punishments in ancient Rome. A synthesis of considerations concerning death penalty based on legal and non-legal sources of ancient Roman philosophers and jurists allows to conclude that Roman criminal law did not include definitions of some terms such as “criminal law”, “criminal trial” or “death penalty”. At that time, death penalty was regarded as one of the necessary elements of the law in force, however, no uniform system of punishments has been developed. The indicated Roman philosophers and jurists in their works synthesized and assessed the punishments that awaited those who broke the law as well as the methods of their implementation. After all, each of them hierarchized the penalties, as well as the methods of their enforcement in an individual manner. In ancient countries, death penalty played a significant role, aroused a sense of fear and anxiety in the public space, caused people to abide by the legal order, and at the same time prevented criminals from repeating prohibited acts.

The Class-Based Approach to Roman Criminal Law

<p>The theory of class struggle lay at the root of Marxist methodology. According to historical materialism, the slave formation existed in the ancient Roman state, and Marxist historians further developed the concept of class divisions in Roman society. Their views on this subject permeated also the research on Roman law, which was to be studied in terms of the influence that class divisions and class struggles had on the evolution of the state and legal norms in ancient Rome. This approach mainly concerned Roman private law, which was of the primary interest to scholars. The author attempts to determine whether the issue of class also constituted a reference point for studying the criminal law of ancient Rome, which had the character of public norms. The article examines the most representative views of Roman law scholars who applied the Marxist method in their research. Despite their attempts, they found it hard to uphold the concept that ancient Roman society had been divided into antagonistic and structurally homogeneous classes, and what is more, that these classes had been united by class consciousness. Differences between social strata in their legal position, including different criminal law norms, did not result from class divisions and class struggle, but rather reflected the specific character of ancient Roman society.</p>

Kilka uwag na temat niewolników i prawa karnego. Rozważania w oparciu o D. 48, 2, 12, 4

<p>The purpose of the article is to present the legal situation of a slave under Roman criminal law. The analysis conducted proves that the approach towards slaves changed along with the transformation of the government system of ancient Rome. In the Period of the Republic, criminal liability of slaves evolved in two directions. The <em>dominica potestas </em>was exercised by owners, as well as the collegial body – <em>tresviri capitales</em>. From the Principate period, Roman jurists were convinced that the legal status of a slave and a free person was identical under criminal law. The difference between these offenders was non-exercise of <em>leges criminales</em> with a penalty that would be inadequate for their legal status, or ruling and exercising of more severe penalties against slaves.</p>

Wiarygodność środków dowodowych w rzymskim procesie karnym okresu wczesnego cesarstwa

Preserved sources regarding Roman criminal law are very often devoted to procedural issues. There was also room for the question of evidence in the Roman criminal trial. This article discusses the issue of their reliability. It was taken into consideration not only the evidence itself, its type or substance. The person who presented the proof and the method of obtaining it was also checked. In some cases, the use of torture was obligatory.

Humanitas and Severitas On Possible Impact of Christianity on Roman Criminal Law in Fourth Century

Humanitas and Severitas On Possible Impact of Christianity on Roman Criminal Law in Fourth Century

Summum supplicium in the Legislation of Christian Roman Emperors

This publication is an attempt to answer the question: what was the role of the criminal penalty, especially in its strictest form (summum supplicium) in the Roman legislation of Christian emperors? Finally, whether is it noticeable, based on the example of summum supplicium, that Christianity influenced the Roman criminal law in any way? As it has been demonstrated, the new state religion did not radically change the Roman criminal legislation. The legislation of the Christian emperors confirmed both, the division of society into servi and liberii that had existed for centuries in the Roman state and the diversity of the legal situation of individual social groups. Punishment in the legislation of Christian emperors continued to fulfil the role it had played in the previous centuries and became, even more than ever before, an essential tool for the political struggle of the present state authority. The finest example of this was the legislation of Constantine the Great, followed by all the severity of criminal repression which resulted in the issuing of this legal act. A great desire to bring about a new order, maintain power and even the fear of losing it can be detected in the strictness of the Constantine’s legislation. Finally, the once persecuted Christians began to behave like their previous persecutors.

On Prosecutor’s Offences in Roman Criminal Trial

The subject of the article is to present a crime of collusion (praevaricatio) in Roman criminal law. It is one of the forms of obstruction of the criminal process by the prosecutor. The main scope was to show this crime in the juridical sources, preserved in the Justinian’s Digest.

Some Remarks on the Issue of Suicide in Roman Criminal Law

This paper analyses the issue of suicide in the sources of Roman law, primarily criminal law. In the course of that, it will focus on the following key points: after a few introductory remarks outlining the Roman custom of committing suicide, first, it will discuss the judgement of suicide in criminal law in general; then, it will examine the appearance of the culprit’s suicide as grounds for exclusion of culpability (and the limits thereof) in sources in imperial law; finally, it will briefly analyse the legal position of suicide in military criminal law.

W poszukiwaniu rzymskich korzeni dowodu poszlakowego. Wstępne kwestie źródłowe

The most typical division of evidence in the Polish criminal procedure is the one into direct proof and indirect proof. Romans did not come up with scientific theory on the evidence and even with theory of the criminal proceedings as well. However, in spite of the absence of proper constructions of circumstantial evidence in Roman criminal law, this is out of question that Roman law allowed to present adminicles in both the quaestio perpetua trial and in the cognitio extra ordinem proceedings. The Roman accusators and advocates used with predilection the circumstantial evidence in the lawsuits to convince the judges. The examination of the most important legal sources: D. 48,19,5 pr. (constitutions of Emperor Trajan) and C. 9,47,16 (constitution of Emperor Constantine the Great) undoubtedly shows that circumstantial legal prosecution was in Roman world fully allowed. Quintilianus distinguished between direct proofs and indirect proofs. He called them probationes inartificiales and probationes artificiales (signa, argumenta, exempla). The most similar to present adminicles were signa.

SENECA, DE BENEFICIIS 6.19.5—A NEGLECTED TEXT ON ROMAN PUBLIC LAW

si quis patriae meae pecuniam credat, non dicam me illius debitorem nec hoc aes alienum profitebor aut candidatus aut reus: ad exsoluendum tamen hoc dabo portionem meam.If anyone were to lend money to my country, I will not call myself his debtor nor will I declare this as money owed either when a candidate or when prosecuted: nevertheless, I will contribute my share to paying off the debt. Miriam Griffin drew attention to the comment of Justus Lipsius: ‘a defendant might have to make such a declaration in cases involving financial penalties, such as extortion and peculation, for when the litis aestimatio [‘assessment of damages’] was made, it would be important to know who the other claimants to the convicted man's assets were, and how encumbered his property was.’ No further elucidation, however, has been made since Lipsius. Mommsen failed to record this passage in his Staatsrecht and Strafrecht, and, as far as we know, no monograph on Roman criminal law mentions the passage of Seneca.

ЗАРОДЖЕННЯ І РОЗВИТОК ПРАВА В ДАВНЬОМУ РИМІ (середина VІІІ – VІ ст. до н.е.)

The article covers the history of the formation of Roman law in the "period of kings" in the context of the development of Rome from ancient times to the time of the formation of the republic. The formation of the social-political system, the division of the Roman population into genuses and families, the formation of social classes of patricians, plebeians and proletarians, the centralization of power in the hands of an elected monarch, the administration of the state through the Senate, the formation of a troop divided into centuries, which subsequently turned into a separate social stratum that became representative of the interests of the people and had a tremendous impact on the state power of the country. It describes the formation of concepts of positive and sacred law, each of which had its own sphere of influence and worked equally on an official basis. It is shown how the division of social norms into a customary and positive law was formed, which resulted in the formation of two types of sources of law: custom and law. As the custom appears first, which is a moral norm fixed in the minds of people, and then formed, with the development of the state and society, the written law, secured by the authorized authority of the country. A separate issue in the article is considered the problems of the formation of the private property institution, as well as the formation of civil law, the creation of arbitration courts, speeches of Rome as an arbitrator in international relations. In addition to civilians, in ancient Rome, criminal law began to be formed as a means of ensuring order in society. The main principles and concepts of Roman criminal law are considered: "the principle of the talion", "the court of Lynch".

POENA CULLEI. KARA CZY RYTUAŁ?

Poena cullei. Penalty or Ritual?SummaryPoena cullei appears to have been one of the most severe and cruel penalties in Roman criminal law. A convict was sewn up in a leather sack and drowned either in the river or in the sea. This sort of punishm ent was mainly inflicted on kin-murderers, which finds its reflection in numerous ancient sources which describe it as poena parricidi. Kin-murderers are claimed to have been liable to such retribution since the punic wars, and this sanction remained effective all throughout the period of Roman state.The sack penalty was more an act of a purification than a penal sanction in its legal meaning. A kin-m urder was perceived by the Roman society as an appalling act bringing pollution not only upon its perpetrator but also the whole community. In order to restore the previous state of order, the society had to get rid of a criminal in the course of a special ritual. At first a convict was flogged with red rodds. Then he had a lupine mask and clogs put on, to be finally sewn up in a sack with four animals - a dog, a monkey, a cock and a viper and afterwards drowned. According to the Romans, a dog, a cock and a viper were horrible animals. They believed a m urderer would undergo a transformation from a hum an being to a blood-thirsty beast. Surprisingly, the three mentioned above creatures had chtonic character and each of them was supposed to play a crucial part in the underworld.The worst consequences ofpoena cullei were to appear after the death of a criminal. During this gloomy ceremony abolitio imaginis was imposed and a m urderer was deprived of the right to a decent burial. This sort of procedure was applied throughout centuries and even in Christian Times did not lose its religious-ritual nature.