Obligations in Roman Law: Past, Present, and Future

Chapter 11. Roman Delicts and Criminal Law: Theory and Practice

267 Chapter 11 Roman Delicts and Criminal Law Theory and Practice Cosimo Cascione A Fundamental Question The scholar of ancient Roman law is confronted with a radical question when addressing the topic of Roman delicts and criminal law.1 It concerns the general framework and very existence of a “Roman criminal law” as a normative system that functions (to a certain extent, independently) in order to classify and repress real-­ life situations considered to be socially damaging. The radical nature of this question stems from at least two ways of viewing it. The first issue arises not just in terms of the general diachronic comparability of legal systems (thus it refers to the possibility of using our modern concept of “criminal law” to understand or a posteriori establish the Roman one) but also from a peculiar characteristic that is more relevant to this field than it would be, for example, to private law. This peculiarity derives from the existence in the history of Roman law (and thus from its persistence in Roman legal scholarship ) of a significant divide in a category that today is assigned entirely to modern criminal law. The category consists both of private wrongs, which (to anticipate a simplification2 based on a strong textual foundation and that carries a definite heuristic usefulness) we can start out by calling delicta, and of public wrongs (crimina). This division has produced a strong discontinuity discernible in the history of legal thinking. Since the Bolognese revival of Roman law, the control of criminal behaviors across different European contexts has 1. On these introductory aspects, see, for example, Humbert, “La peine en droit romain” (1991) 133–­34. 2. See the discussion later in this chapter. 268 Obligations in Roman Law detached itself rather clearly from this perspective and from the procedural forms that sustain it (as had already partly occurred with the law of the late classical period onward),3 drawing the delicta into penal spheres tied to the exercise of public or authoritative powers over individuals. With regard to the many and serious challenges posed by this question, one can proceed only by selecting a few of the most relevant aspects for discussion here. The Peculiarity of the Division between Delicta and Crimina From the very start, the topic of Roman delicts and criminal law highlights, in line with a tradition strongly grounded in the Roman sources, these two perspectives on what has been described as “Roman criminal law.” It lends immediate emphasis to the different repressive configuration of private delicts, achieved primarily through the structures of civil procedure, and to that of criminal offenses pertaining to public law, repressed since ancient times, as far as we can tell, through procedural forms describable in terms of a “public trial.” These forms obviously differed greatly from one period to the next. It is then a question of evaluating in what way (and to what extent and since when) the Romans considered “legal” the exercise of truly criminal repression. I here intend the term legal in the sense of pertaining to the category of ius as consistent with that idea of rationality to which our conception of Roman law refers almost automatically and not without some measure of (over)simplification, particularly in relation to other ancient cultures. The dichotomy just described expresses itself immediately through the alternative delicta/crimina. This dualism4 represents a clear doctrinal distinc3 . See, recently, Giglio, “Teodoro Mommsen e la repressione penale” (2006). Garofalo (Fondamenti e svolgimenti della scienza giuridica [2001/2005] 235–­ 65) advances an interesting interpretation arguing for the continuity of European thinking about criminal law from the Romans onward. See also Ebert, “Mommsen und das Römische Strafrecht” (2005), esp. 55–­56, 59, on some of the dynamics involved. 4. Along with the further articulation of maleficia/flagitia/scelera, which also takes particular details into account. For Albertario (“Maleficium” [1925/1936]), maleficium (in the classical period) corresponded to delictum, while according to Volterra (“Flagitium” [1934/1999] 269–­ 88), flagitium (again in this period) denoted, in a technical sense, a moral or military offense, while scelus referred to the most ancient crimes (whether capable of being expiated or not): see, for example, Santalucia, Diritto e processo penale (1998) 6–­ 7. Roman Delicts and Criminal Law 269 tion, emphasized during the period of radical interpolationism:5 on the one hand, the ius civile generated a private penalty (it is mainly here that there comes into play the...