Roman criminal law and criminal procedure law

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The criminal law and criminal procedure had in the ancient Roman history from the start importance. The terminology of the criminal law of the Roman sources was, however, very vague, especially with regard to the profound changes that the Roman criminal justice system underwent from the Roman Republic to the still constitutional principle to the absolutist late antiquity (also known as the dominate ). For the later legal reception there were no formulated general teachings.

The Roman criminal law was essentially subject to four stages of development. From the early republic up to the 3rd century private capital crimes could be atoned for as private vengeance, provided this was permitted by the court. When criminal law became more extensive and publicly oriented until the 2nd century, the jury decided on a case-by-case basis. Permanent courts of justice were also established until the end of the republic. The jury ruled at the time under the chairmanship of a praetor. Finally, and already in principle, the civil servant process was introduced. At the same time, the first approaches for a criminal law science developed. During the late antiquity, the principle of the official process fully unfolded.

From the 12th and 13th centuries , the work of the consultants and the even earlier influence of the moral concepts of canons developed into a criminal law practice that can be described as an independent criminal law science from the Italian late Middle Ages . This criminal law was adopted in Germany and subsequently developed very independently.

General

A distinction was made between private crimes (“ delicta privata ”) and public crimes (“ crimina publica ”). Private crimes included injury to the individual, his family and his property, initially even murder. Public crimes were crimes against the general public, against the people and the state as such.

Up until the 1950s, Theodor Mommsen shaped the history of the development of Roman criminal law with his standard work of the same title from 1899. In particular, Jochen Bleicken and Wolfgang Kunkel were able to dispel misconceptions that primarily concerned criminal proceedings. Today it is assumed that the importance of public crimes during the time of the Roman Republic was still very low and was limited to a few facts, such as high and state treason, which were carried out in the perduellion procedure ( duumviral procedure ) (compare in particular as a special case that proceedings initiated by Caesar against Rabirius ). They were prosecuted in a state-organized criminal trial. All other crimes were classified as private crimes, which were long persecuted by the injured person or his family and which were shaped by the principle of revenge . Investigations were carried out on the victim's side; self-help was a cardinal feature of Roman law enforcement. The sanctions for public and private crimes hardly differed, as there was a threat of death , talion and reparation through property victims.

In the course of the imperial era , the number of injustices fought against by the state with its coercive measures expanded. Public criminal law gained in importance to the same extent as private prosecution tended to take a back seat. The main reason for this was a change in the penal principle. Acts of retaliation in the form of revenge by the injured or his clan no longer hit the nerve of an increasingly complex society, whose imperial and large-scale efforts were content with the principle of compensation in money.

The early Roman criminal law was flanked by an initially uniformly organized process that was then carried out in two parts from the time of the Twelve Tables Act , the so-called legislative actions . The court magistrate and the judge used a ritual and fixed formulas for the opening of the trial ( in iure ) and the subsequent process ( apud iudicem ). In its further development, the procedures often resembled "process betting". The form process introduced in the late republic secularized the judiciary by restricting the ritualistic features of litigation and creating a systematic procedural agenda. The bureaucratic centralization of imperial administrative work in late antiquity meant that the cognitive procedure was able to prevail in the process , which found its way back to a uniform procedure and was led by a civil servant judge.

Early Roman Republic

Christian Reinhold Köstlin , poet and criminal lawyer in the first half of the 19th century, pointed out that ancient Roman criminal law, contrary to today's dogmatics, was not conceptually occupied. In his opinion, civil law and private criminal law merged. To this extent, there was no systematic determination of the character of criminal law. Contemporary legal consciousness must have placed retaliatory measures against the perpetrator in the sovereignty of the pater familias , who of course had extensive authority and jurisdiction. The defining feature was that the ancient state was fully embodied in its citizens, its general will, as it were, was fed entirely by the will of the “free person”. And because the Roman state was based on the concept of personality in its abstraction, the legal practitioner in kingship and also during the republic knew of an identity protection will.

Vengeance was often unpolished and raw. It served as retribution. Whether, in addition to the protective purpose of “maintaining the reputation” of the injured person or his clan, other punitive purposes, such as “improving” the delinquent or “deterring” the general public, cannot be said with certainty. Various text sequences from Seneca were occasionally interpreted to this effect. Sacred and state criminal law turned away from collectively borne individual criminal law. What was idealized there was fair “satisfaction”. The internal and external moments of a crime were assessed. Parallel to the legal developments in public law, the principle of indictment before the People's Court emerged. JFH Abegg finally tried to classify the purposes of punishment. He saw individual "violations of the law" subject to the father's right of talion. Rather “generally dangerous acts” were then subject to the principle of penance. “Fighting crime” was the task of the state, derived from this, it was also responsible for the imposition of public penalties. Public criminal trials increased and competed with private criminal law.

Middle of the 5th century BC In BC, the young Roman legal system created a legislative climax that was to develop its effect for centuries: the Twelve Tables Law . It was shaped by civil law, few criminal law regulations were mixed in. The law arose from the customs of a largely rural community.

Crimen and delictum in the Twelve Tables legislation

The XII tablets were made up of different influences. In addition to Greek , especially philosophical, there were also (criminal) legal ones, such as that of the legal reformer Drakon (keyword: "draconian punishment") or that of Solon . The influence of traditional late Etruscan and early Roman customary law was also significant . It was carried on by the long-established patrician upper class and by the traditional priesthood . The criminal law was an ancient model, which was characterized by vigilante justice and private vengeance. For violations of the law, delicta , the injured person retaliated himself and directly. The agnates of his clan atoned him for murder . The extent to which parts of this customary law were already inherent in the royal laws ( leges regiae ) must remain open, because they have not been handed down. It is also unclear what influence customary law had on the ius papirianum that grew out of pontifical practice .

Attachment of the XII panels

Initially, the state only had an interest in criminal prosecution in exceptional cases. In this regard, only offenses such as treason or high treason ( perduellio ), the fraudulent use of offices ( ambitus ) and the exceeding of official authority ( maiestas laesa ) fell to the public eye . The embezzlement of public funds ( peculatus ), the forgery of coins and documents, perjury ( falsum ) and particularly serious misconduct against sacred law were also publicly prosecuted. Deeply rooted in Roman society, sacred law was part of the mos maiorum . Offenses that were partly of a sacral nature were the robbery of the temple ( sacrilegium ), insulting the Vestal Virgins , deliberate arson, killing of relatives, poisoning or sorcery. They were classified as common good harmful and were already on the Twelve Tables crimen . In the case of acts of violation, one moved to the forum of the state.

In historical times, remnants of private vengeance and also of theocratic (sacred) penal system can be identified. Archaic references to sacred criminal offenses can be found in the punishment for thoughtlessly committed manslaughter ( homicidium imprudentia commissum ), in the fornication of the vestals ( caput velatum ) or in the atonement of the Horatians . The sacred criminal law could not be exercised by the individual because it was grasped in a higher sense of understanding. It could only be sanctioned in the name of a higher general public, personified by individual gods who, as guardians of the Grail, stood for sacred relationships and institutes. Basically, the function of the punishment ( poena ) for public crimes ( crimina ) and the facts of the private crimes did not differ , except that the carrier of the coercive violence exercised was in one case the community and in the other the individual. The sanctions were based on two things, the penal and equally the punitive function. If fines were demanded, the money went to the aerarium of the Roman people as a fine , whereas the injured or his clan received penance as satisfaction for experienced injustice.

Facts, process, punishment and sentence

According to today's understanding, the Twelve Tables Act was largely based on civil law and contained few provisions on criminal offenses. These were placed on panels VIII and IX. Only physical fragments have survived from Plate IX, but no information on the wording. What was actually recorded on it is unsecured. In contrast to this, legal historical research assumes that there were facts that were not even explained. No express threat of punishment is said to have been specified for murder. The atonement by way of blood revenge is taken for granted by Marcus Antistius Labeo , a respected jurist of the Augustan period. A sentence tradition probably dates back to the time of the kings: Si qui hominem Liberum dolo sciens morti duit, parricidas esto . According to the statement, only those who deliberately killed a free man were considered a murderer. According to today's legal understanding, this is a matter of course, because a negligent commission of the murder is already logically excluded. It was different with negligent homicides. By "offering" a ram, symbolizing the scapegoat, as it were, this surrogate compensated for revenge on the perpetrator himself.

The offender presented in the preliminary proceedings was received by the competent court magistrate, the praetor . He fulfilled the original task of making confessions. At the same time, he checked whether the act was not already obvious. Doubts about the allegation had to be dispelled in a subsequent court hearing before the judge ( iudex ). A recklessly pronounced conviction should be prevented because otherwise blood revenge would have threatened and there was always the risk that the accusation would then have fallen back on the clan itself. If the perpetrator managed to evade the conviction and punishment by fleeing, he had to go abroad ( exilium ), because on the ager Romanus he was considered to be outlawed throughout his life and was no longer allowed to enter it - because of the danger of death that was imminent at any time. Proscribed persons were advertised by name on death lists for the public benefit, for branding and often for attractive rewards.

A putto presents Ceres Korn (etching, 16th century)

Other crimes were expressly regulated. According to Table IX, the death penalty stood, for example, on bribery of judges. It was compulsory to conduct legal proceedings if the death penalty threatened. Here offerings were no longer sufficient, rather the punishment of the sacratio capitis required, according to mythical custom, human sacrifice. A perpetrator was consecrated to a certain god and it was lawful to kill him. The traditional determination of God may also have been the reason why the sanction was often built up as a mirror image of the crime; at least that was true of the death penalty. The arsonist was to be burned and the nocturnal harvest thief hung from a tree dedicated to the harvest goddess Ceres . At the same time, the culprit's assets were confiscated and, in many cases, dedicated to Ceres.

A thief caught in the act at night ( fur manifestus ) could by law be killed immediately by the robbery (panel XII tab. 8,6). If an armed thief could be caught in the house of the robbed person during the daytime, this also applied in principle to this case (panel XII tab. 8,7). The owner of the house, who loudly called the neighbors together during the arrest ( frühlat. Endoplorare = implorare ), had the guarantee that they could provide him with evidence as a witness. In general, neighborhood support was very important in such contexts. Here too, the offender had to be brought before the magistrate first. If the act was obvious, the same could award the thief to the robbed without further legal proceedings , who could then either kill him in revenge, send him into slavery or bondage trans tiberim or give him back for ransom . Physical revenge, on the other hand, was not legitimate if the thief could not be arrested immediately when the crime was committed. The obviousness of the act was irrelevant with all the consequences if the popular means of securing evidence in Rome, a house search of the perpetrator ( quaestio lance et licio ), was successful because the stolen property could be found. In order to indicate the legality of the house search, it was customary for the robbed to appear naked in the house of the alleged thief in a ritual act - with a sacrificial bowl and the cultic headband of a priest.

In addition, the panels were based on the principle of the fine. This was usually pronounced twice the value of the stolen item (panel XII tab. 8,8).

For personal injuries, primarily bodily harm ( iniuriae ), the panels named four offenses. So, wielding spells that bewitched a person was punishable by death. More severe injuries that resulted in permanent disability of the victim, were basically talionsrechtlich punished, true to the ancient Near Eastern law set " eye for an eye ", "a tooth for a tooth". The injured man was allowed to do what had been done to the perpetrator. The Talion was avertable, however. If the parties agreed that the revenge should be replaced by payment of money, it was waived by means of an agreement to that effect. On the other hand, if an agreement could not be reached or if there was a dispute about the reason or the amount of the fine, the penalty imposed by the Talion remained (panel XII tab. 8.2). Fines were stipulated in advance by law for minor bodily harm. Violently inflicted bone fractures ( os fractum ) were sanctioned with 300 As (panel XII tab. 8.3). Half the penance was to be paid for a slave. Especially with regard to the slaves, who often ran away, the bounty hunt scenario developed early on. So-called fugitivarii were able to recapture escaped slaves for a reward. In the end, minor violations of personality or liberty cost the perpetrator 25 As (panel XII, tab. 8.4).

From the point of view of modernity, the sacred offenses were barely comprehensible. Early Roman society had the firm belief that pernicious forces could be evoked through mysterious rites. Insofar as curses were sufficient punishment in fraud-related cases , magic spells on the destruction of seeds, stalks and cereal fruits ( fruges excantare ) or unjustified lure of the fertility of the neighboring property on one's own ( pellicere ) had to be met with the death penalty (panel XII tab. 8.1). The same applied to defamation ( malum carmen incantare ).

Criminal proceedings

The official offenses under the so-called Komitialprozesses front of the old Roman popular assemblies, the negotiated comitia , which mainly originally from the military system herstammende Comitia Centuriata (Zenturiatskomitien) was responsible. In legal research it is controversial to what extent and through what legitimation the tribunes of the Comitia tributa (tribute comitia ) were allowed to go beyond their traditional competence in legislation and to exert influence on criminal justice. In addition to the imposition of property penalties, according to the majority opinion, following the instructions given by the historians Livius and Dionysius , the issue of sanctioning capital penalties should soon also have gone into effect.

Another panel shaped the criminal proceedings. Before the Concilium plebis , the tribunician trials were conducted, trials that were to shape the term “revolutionary people's court proceedings”. The question raised in scholarship as to whether the Concilia had existed since King Servius Tullius can remain open , because it remains in the dark of legend. In any case, since the young republic, defendants there had to answer if they had violated the tribune in its sacrosanctitude or disregarded its rights of participation ( ius agendi cum plebe ). The representatives of all levels of the magistrate as well as private individuals and legates could be indicted. Their subject matter was multi- and perduellion procedures, initially also capital litigation procedures. Increasingly, the centurial committees had to deal with the growing sovereignty of the Concilium plebis, because in contrast to themselves, the Concilium was not made up of parity, but purely plebiscitary. In the Concilium, the plebs were therefore able to fully develop their tribunician power , exaggerated - as evidenced by the information provided by Cicero and the XII Tables - with the capital lawsuits against the chief magistrates, but at some point so much that, in order to put a stop to this, the competence for capital offenses was transferred to the central committees has been.

With the lex Valeria de provocatione the right was transferred to the people to judge in the last instance in the central committees. The patrician aristocracy resisted this for a long time, but in the struggle of the estates during the early and middle republic the plebs conquered the future- oriented, decisive right of (co-) determination. Köstlin believes that the fact that the system of people's courts could ultimately not assert itself and that it was successively replaced by police justice and, in late antiquity, by imperial-designated civil servants, is what Köstlin believes to be able to establish from the fact that the granting of Roman civil rights was operated too inflationary. After ( foreign ) allies and subjects were included in the extensive rights, the authentic understanding of a direct representation of the state by a homogeneous civil society is said to have suffered.

It is presumed that the prosecutor had magistrate legitimacy, because the mostly imposed death penalty required a proper official execution. Death sentences wrongly passed by the magistrate could be attacked by the convicted person within the framework of his right of provocation ( ius provocationis ). If there was a serious official offense ( improbe factum ), this could in turn be prosecuted in the comitial process. The serious private misconduct (murder) also resulted in formal legal proceedings ( legis actio sacramento in personam ).

Even simple crimes were generally subject to state supervision. This was limited to compliance with the rules to be observed for private prosecution. This included the proper extradition of the perpetrator to the plaintiff who won the trial.

Permitted types of action

The illegality of the act and the culpability of the perpetrator were a prerequisite for tortious liability. This principle continues in the modern codifications. The perpetrator had to answer subjectively for intent or intent ( dolus ). In rare cases, negligence ( culpa ) is sufficient for liability. An act was justified if there was a justification, such as self-defense. The admissibility of the lawsuits resulted from the tailoring of the individual legislative actions, which were not interpreted with regard to their goal of the action, so had to fit. Many elements of criminal dogmatics that are now assigned to the general part in German law did not yet exist, such as experimental criminality or involvement in the crime through aiding and abetting.

Individual criminal complaints (selection):
By means of the actio iniuriarum , deliberate bodily harm and defamation (real and verbal iniuria) were pursued with the aim of obtaining compensation and bringing about penance. The sentence was limited until the same injustice (Talion) was inflicted.

By means of the actio noxalis , the perpetrator of violence was liable for the victim of violence within the framework of the Patria Potestas . As the opponent of the claim, the perpetrator was faced with the choice of compensating for the damage as his own, or of extraditing the perpetrator ( noxae deditio ). Penal litigation liability was an option in all adjective actions .

The actio furti concepti immediately followed a house search ( quaestio lance et licio "search with bowl and string") of the thief of a thing, provided that it could be found on him ( furtum manifestum ). The thief was brought before the magistrate, whipped and then placed under the control of the private prosecutor. If the stolen property was actually proven to have been stolen by a third party, the “ convicted” person could initiate recourse by way of the actio furti oblati . In both cases the fine was tripled. Four times as much could be asked if the house search was refused, so that a praetorical actio furti prohibiti was necessary.

Penance for robbery was demanded through the actio vi bonorum raptorum . At the end of the Republic, this lawsuit was based on a tightening of old civil offenses in accordance with the praetorical edict. In addition, the criminal offense of willful property damage by armed gangs was introduced.

Influences of the lex Aquilia

The law of the early Roman Republic was dominated by the Twelve Tables law. The punishments were based on the “principles of vengeance and fine”, with the atoning and torturing character also forming the basis of the fine. In the following centuries the character of the penal principle changed. Injustice suffered was given the idea of ​​compensation, compensation understood as compensation for damage. Revenge as a punishment for a delictum was simply to be accepted, but a paradigm shift was combined with the replacement principle through cash benefits, which was increasingly recognized. Compensation and penance could come together when the perpetrator denied the act. Not the single, but the multiple replacement amount had to be paid. In the further development, only the damage caused was compensated for. With joint guilt everyone had to bear the full damage.

About two hundred years after the introduction of the XII Tables, a criminal justice system began as it stands up to modern understanding. Rome had grown into a city, housed hundreds of thousands of residents and deplored a growing proletariat. Numerous slaves lived in Rome. The predominantly civil law instruments were not enough to master the fight against crime. For the first time, criminal law was separated from the civil law context. Without going into the dispute as to when exactly in the course of the 3rd century BC. When the lex Aquilia was introduced - replacing the XII tablets - new criminal offenses for damage to property have been noticed since then, regulated in the first and third chapters of the literally preserved work. Damage to property was previously considered to be inadequately regulated, by overemphasizing, for example, the field crime or the incorrect assessment of the injury to a slave as bodily harm instead of property damage. Overall, many legal loopholes had to be closed by magistrate edicts.

The lex Aquilia introduced the “ damnum iniuria datum ”, the “ impairment of property through unlawfully inflicted damage”. This could occur by killing ( occidere ) foreign slaves or four-footed herd animals or in general by burning ( urere ), breaking ( frangere ) or mutilating and wounding ( rumpere ) of all conceivable property. Rumpere experienced an expansion of the facts after corrumpere ("destroy, spoil, damage"). The calculation of the fine from the damnum was carried out according to the principle of id quod interest , therefore not according to the material value, but according to the market value for the injured party. If a slave with a will was killed, the calculation of the damage would be the real value of the slave plus the inheritance. Dispute about the perpetrator was pursued with the actio legis Aquiliae . The perpetrator admitted that the amount of the damage was determined by way of the actio legis Aquiliae confessoria .

Late republic

The change in the penal principle

In the early days of the republic , the interpretation and application of criminal law were a monopoly of the ponifices , the college of priests. From the 2nd century BC BC the archaic basic pattern of "physical revenge" for capital crimes gave way to the principle of penal action. The aim of penal actions ( actiones poenales ) was often not yet to obtain compensation, but rather to pay a fine ( poena ). Penalties could have a criminal or prosecutionary character. In the form of a mixed lawsuit ( actio mixta ), the two purposes of the action could be combined. The penal action was passively inheritable, because the perpetrator himself, not his inheritance, was to be punished. The change in the principle of punishment had led to too many legal excesses which ran counter to the social need to maintain legal peace. Population growth and the emergence of an urban underclass pushed Rome to the limit of traditional methods of law enforcement.

It became more and more clear that criminal proceedings only proceed properly in the event of state prosecution, which is why a police justice system was established. Her mandate extended to the fight against crime in the urban underclass. The means of coercion were successfully used to collect fines under threat of punishment. Victims of criminal offenses or their agnates could lead accusations of popularism in order to initiate criminal sanctions. A systematic criminal law and criminal procedure law slowly developed from this. Originally, criminal law was part of the ius civile . That changed, for criminal law became ius publicum . Papinian provides an interpretation aid for understanding the term , because what was meant was not the reading of the current term "public law". He described the ius publicum as part of private law, which in the overall interest contains “mandatory legal provisions (unchangeable by private parties)”, which only emphasizes the indisposability of the private sector. During the early imperial period , penalties were ultimately established as a principle of punishment in classical law .

The same applied to public criminal proceedings. A prominent example of the public criminal justice system of the late republic was the proscription of Cicero and his subsequent violent death. Sulla had already caused a sensation with laws for the persecution and mass killing of his political opponents, and his executive laws were particularly notorious . These included, within the framework of the establishment of the permanent institute, the quaestio perpetua de maiestate , probation for governors of Roman provinces, whose abuse of office was assessed as high treason in certain cases . Plutarch reports of an intensified application in the trial against Aulus Gabinius . The lex Cornelia de repetundis , also known as lex Cornelia repetundarum , was a law that forbade Roman officials from blackmailing others. The lex Cornelia de sicariis et veneficis regulated homicides, in particular cases of poisoning, cases of arson and cases of criminal gang formation. The lex Cornelia testamentaria nummaria , also known as the lex Cornelia de falsis , was a law that made counterfeiting coins and wills a criminal offense. With the lex Cornelia de ambitu , Sulla made election bribery and buying offices a criminal offense and the lex Cornelia de peculatu sanctioned the embezzlement of public funds. A sign that criminal prosecution under private law had become official was the enactment of the lex Cornelia de iniuriis , a law punishing insults, trespassing and deliberate crimes of bodily harm.

Together with his legal reorganization, Sulla created a large number of permanent quaestion courts, each individually responsible for high treason ( quaestio maiestatis ), evasion of state property ( quaestio peculatus ), election bribery ( quaestio ambitus ), murder, poisoning and endangering public safety ( quaestio sicariis et veneficis ) , Forgery of wills and coins ( quaestio de falsis ) and were responsible for serious legal violations and insults ( quaestio de iniuriis ).

Iudicia publica : The emergence of the public courts of justice

The formal judiciary has changed significantly. The praetor urbanus exercised police justice within the framework of the violence assigned to him. He delegated certain areas of authority. The punishment of lower class criminals or slaves was the responsibility of the tresviri capitales . They were magistrates of low rank and represented in large numbers in the cityscape, because they carried out general police tasks of security and order. In addition, the functionaries were responsible for the administration of the state prisons. They were also authorized to torture and execute. Before the first jury courts could develop, the decisions on disputed criminal proceedings were still incumbent on the advisory board of the triumvirs, the so-called consilium . The lay judges decided casuistically about the guilt and innocence of the perpetrator and this within the framework of the praetoric guidelines. His competence in turn went far. In individual cases he was even allowed to deviate from the law and instead of demanding the death penalty, for example, to allow the perpetrator to escape into exile and to have the ban pronounced ( aquae et ignis interdictio ).

In the times of the older republic, political criminal trials were conducted by tribunes , aediles and quaestors and brought before the people's assemblies . Now the police justice was responsible and from the imperial era an additional responsibility was introduced, because the increasingly complex range of tasks of police work required higher professionalism in dealing with the law. The Senate should have to judge breaches of official duty by career officials , since it was awarded the highest level of qualification. He, who was responsible for legislation , was now also called to judge criminal justice in the praetor's consilium. The changeable activity of the Senate in the constitutional judicial system, where it had issued various senatus consulta , was primarily known . As part of the administration of criminal justice, isolated Senatus consultees were added, for example on arson. In Italy and the provinces, on the other hand, the Senate became very important as an independent court, although it was also represented there. Extraordinary courts of justice ( quaestiones extraordinariae ) were established. The consilia of these quaestion courts made up of senators soon became the so-called quaestiones perpetuae .

The lex Sempronia iudicaria of C. Gracchus finally opened access to the bench for the knighthood . The law was also the starting point for the development of a system of jury courts. With the law, Sulla expanded the judicial system and created new responsibilities for bodies that had to deal with particular offenses, including the Court of High Treason and Disobedience ( quaestio maiestatis ), the Court of Extortion in the Provinces ( quaestio repetundarum ) and the Court of Justice for murder, poisoning and endangering public safety ( quaestio de sicariis et veneficis ). The final step in the development of the iudicia publica was the Augustan criminal legislation. Praetors or aediles presided over the quaestiones as iudex.

Cicero gave detailed testimony about the course of legal proceedings in the courts . At that time, lawsuits were not prosecuted ex officio, but required a private report so that the proceedings could be initiated. There was no institution like today's public prosecutor's office. Since the complainant changed in his legal capacity to the prosecutor, he - equipped with all duties and powers - became a party to the proceedings . Such a system created false incentives when it was taken into account that a victorious accuser received state awards and received shares of the convict's property. Subsequent defamation lawsuits that were equally successful ultimately contained the flurry of popular lawsuits. A prosecutor was therefore responsible for the process himself, but was able to use a lawyer appointed by the court. He named the evidence or had it named. The defendant was able to defend himself by appearing with a large number of lawyers. Witnesses, documents and confessions were allowed in the evidence process. Witnesses could be forced to testify, slaves and freedmen could even be tortured. Sharp cross-examination was not uncommon. The jury followed the trial closely but did not intervene. The judicial magistrate exercised its proper duties as the session police. The Consilium finally judged by means of voting tablets. In principle, death sentences and fines were imposed; no prison sentences were known. In particular, the criminal process had become public because anyone could indict ( quivis ex populo ), a principle Athens had known for a long time.

Imperial times

The extraordinary criminal justice of the imperial era

CIL VI 1194: An inscription dedicated to the Western Roman Emperor Honorius for another exercise of office as praefectus urbi . (about AD 418)
Damnatio ad bestias : mosaic from the 3rd century AD (Museum of El Djem (Tunisia)). Subtext: "Criminals who have become animals themselves because of their crimes are exposed to wild animals in the arena."

Since the beginning of the 19th century, legal research has repeatedly emphasized that the most fundamental social change in the Roman Empire consisted in the fact that the coordinates shifted from a republican-identitarian understanding of the citizen to the state to a sovereign-subordinate one at the time of the empire . The abandonment of the ancient idea of ​​the state represented by the people to an absolutist monarchical apparatus had to inevitably color the criminal law and its system of sanctions.

In the substantive legal sense, criminal law did not undergo any fundamental change during the imperial era. Romanists of the 20th century, however, lively discussed which legal sources the classical jurists of the imperial era might have recognized. In the context of the dispute, well-known representatives, such as Fritz Schulz or Max Kaser , assert that customary law has retained its validity . Werner Flume was rather negative about this.

Augustus rearranged the criminal courts, nevertheless efforts were made to replace the ordinary criminal justice with an extraordinary one. Involved in this process were the emperor, his high-ranking officials and the senate. Augustus created the Lex Iulia iudiciorum publicorum et privatorum , a law that changed the composition of the cumbersome quaestion courts, because from now on there were regularly 17 judges. The tresviri capitales were relieved of their duties, instead the police chief ( praefectus urbi ) and, in special cases, the city commander ( praefectus vigilum ) were given powers of the police jurisdiction. The city prefect was also chairman of a criminal court that took over the important trials. The city commander had a large number of firefighters under him and therefore led the trials against arsonists, burglars, thieves and robbers.

Since many military posts were also set up in the Italian countryside, these were placed under the regiment of the Praetorian Guard . Their supreme command was exercised by the Praetorian prefects . Among the city prefects were famous jurists, such as Pegasus under Domitian and Salvius Iulianus under Marcus Aurelius . QC Scaevola, for example, was the city commander. In technical terms, the well-trained prefects were regularly superior to the praetors. The process of repression of the jury, which began under Augustus, came to an end in the Severan period in the 2nd century at the latest , whereby it is even assumed that prefects had not assumed jurisdiction until then because the areas of responsibility were particularly remote from their original areas of activity.

Under Augustus' successor Tiberius the special jurisdiction of the Senate developed. Its competence was largely exhausted in the judgment of the affairs of its own senatorial class. In the provinces , the emperor often took over the judicial magistrate himself, in addition to exercising supreme command over the army. During his stays in the imperial provinces , he was given the authority of governor, which the legates otherwise exercised, as part of his imperium proconsulare . According to the historian Cassius Dio , the emperor was also granted this privilege within the gates of Rome, but this has been doubted in research. But since he held the tribucinic power , he was at least responsible for the control of the judiciary. The imperial rulings seem to have been exercised cautiously at first. It only developed under Claudius and Hadrian , only to reach full bloom under Septimius Severus . Under the latter, anyone could take their legal dispute before the imperial tribunal. (Second instance) appeals disputes were heard in appeal proceedings. The judgments passed there were the "decreta". In the course of time the emperor had this competence exercised by a delegation of officials.

The process framework for the negotiations had also changed. Instead of the form process defined by a set of formulas , which had replaced the older legislative procedure during the Roman Republic , the negotiations were now conducted in a uniform cognitive style before a civil servant judge for reasons of process economy . Officials appointed by the emperor were solely responsible for the procedure. In the early principate these were consuls and praetors with special tasks entrusted to them, such as the praetor fideicommissarius or the praetor tutelarius , mainly to preserve the appearance of the classical republican constitution. At most, the officials received support for individual stages of the procedure from an assistant judge ( iudex pedaneus ) who was also a civil servant , if he was called in at all. What was new about this cognitive procedure was that the claim could be presented freely within the framework of the applicable substantive law and the defendant was able to defend himself through an equally free presentation. The judge examined the submission of the parties in a free assessment of the evidence and judged on the evidence available to him. Initially, the cognitive process was only used in disputes for which there was no traditional republican form procedural law, which is why it was considered an extraordinary law that gave it its name ( cognitio extra ordinem ). The form process was ultimately almost completely lost as a style of conducting legal proceedings by the 3rd century AD.

The penalties grew tougher. In addition to fines, death sentences and exile (capital punishment), there were corporal punishment and forced labor. In spite of the inadmissibility of prison sentences, these were probably more frequent, which was criticized by late classical lawyers. The penalties, which were strictly bound by the law during the republic, had been made more flexible during the imperial justice. The civil servant judges now pronounced forced labor in mines ( ad metallum ) or transferred the perpetrator to a gladiator school or to the animal hunt arena ( ad bestias ). In both cases the perpetrator became servus poenae because he lost at least his freedom, but regularly his life. The significant tightening of penalties and the assumption of criminal justice by imperial judges brought the lawyers to the scene. They wrote a number of papers on this. Ultimately, because of this, criminal law even became a scientific discipline. Ulpian reports on a decision by the Emperor Trajan , who timidly but initiated one of the most important principles of later criminal law: In dubio pro reo .

Under the emperors Mark Aurel and Lucius Verus , the distinction between people of higher rank ( honestiores ) and people of lower rank ( humiliores ) was established. The latter made up about 95 percent of the free citizens. If criminal offenses were denied, they could be tortured, a procedure for compelling evidence that stopped in front of members of the senatorial nobility or the imperial officials of the equestrian order .

According to the Codex Theodosianus , the emperor Constantine, who was strongly influenced by Christianity , had animal baiting prohibited. As a sign of his revolutionary turn , he also abolished the crucifixion , which was widespread against criminal slaves and robbers. In turn, those who were convicted ad opus publicum retained their freedom , because the punishment meant that only activities in the general public interest were to be carried out, for example in road construction. The possibility of escape into exile, which was granted time and again, was not used, instead the sanction of a graduated form of exile, the relegatio and, in more severe cases, the deportatio to an island came into the focus of the Roman public.

Further developments

Some of the fined offenses formed the starting point for the development of " private criminal law " that shaped the late Republican period and the imperial era . In particular, the criminal offenses in Table VIII were “decriminalized” and mutated into civil law titles under the law of obligations. On this basis, the legal institutions of illicit acts known from the BGB and other private law codifications developed .

The trial of Jesus of Nazareth

Two ancient death sentences have had a lasting impact on European criminal law awareness. On the one hand there is the trial against Socrates , which was well documented by Plato as a participant in the process and which was decided under Greek law, and on the other hand the trial which was conducted against Jesus of Nazareth . There is almost no certainty about this because there are no sources from directly involved. Legal research agrees, however, that it was a process under Roman law. The oldest available source can be found in the Gospel of Mark , it was written about forty years after the death of Jesus, around AD 70. The Gospels of Matthew , Luke and John also report on this.

Jesus was arrested at the Passover festival in Jerusalem because the clergy noticed a worryingly high influx of people on his account and unrest was always to be feared on these days. He was brought to the highest Jewish court of justice, the Synhedrion . The next day he was presented to the governor Pontius Pilate . This information is vague because it is not clear who brought Jesus before Pilate, nor who accused him. It is still unclear what crime he was charged with and who pronounced his death sentence. Since that is already unclear, it also remains in the dark whether the governor's participation in the proceedings was necessary.

Theodor Mommsen assumed that although the Jews had their own jurisdiction over capital, in the event of judgments being pronounced this would have been subject to confirmation by the Roman governor. On the other hand, it is known that at the time of the late republic the provinces still had local courts that worked autonomously, which probably did not apply to troubled provinces such as Judea was. If trials with the death penalty were to be expected, the governor was called into action. As a consequence, this meant that Roman and not Hebrew jurisprudence about Jesus was applied. According to Mark , the Jews would have accused of blasphemy, which according to Hebrew law would not have resulted in death on the crucifixion , but death by stoning .

This suggests that the verdict was already made under Roman law. Fifty years after Mark, the historian Tacitus confirms the pronouncement of the death sentence by governor Pilate. The proceedings before the governor may have been a coercitio or a cognitio . A coercitio legitimizes the police force of Roman officials, who ensure that public safety is guaranteed. "Death" can result as a sanction, but for Roman citizens only if the Central Committee has agreed. The cognitio, on the other hand, is a criminal process. It assumes a crime has been committed. That would then have been an insult to majesty ( crimen laesae maiestatis ) because Jesus answered the governor's question whether he was “the King of the Jews?” With “You say it”. Since an important principle of civil law applied in ancient criminal law, according to which a confessor was to be treated like a convicted person, a cognitio can be assumed at the trial of Jesus , because the lese majesty, which is equivalent to a "crime committed", could result in the death sentence.

Sources of Roman criminal law

Notes and treatises on Roman criminal law can be found primarily in Roman and Greek writers. The following list is limited to the most important sources and is therefore not exhaustive.

writer

General descriptions of the customs and manners can be found in the comedy poets Plautus and Terenz . Later poets such as Horace , Persius and Juvenal also provide some information. Of paramount importance are the speeches and rhetorical writings of the court speaker, Cicero . Due to the mixing of Greek and Roman representations of the legal institutions, Seneca can at best be used with reservations, as can the emulator Cicero, Quintilian, who was particularly well received in the later Middle Ages and the Renaissance .

Among the Roman historians, Livy , Tacitus , Suetonius and Sallust stand out. The “Scriptores” of the Historia Augusta can also be used. The historians Festus , Pliny the Elder and Pliny the Younger are of subordinate importance . The Greeks Polybius , Dionysius of Halicarnassus , Cassius Dio and Plutarch are classified as important.

Laws, legal literature and compilations

In addition to the XII tablets from the early Republican period and the Central Republican Lex Aquilia, there are also works from the period of the Principate and the late antique imperial period for criminal law. First of all, the textbook of the high-class lawyer Gaius is mentioned. Already of great importance among contemporaries, his work Institutions even achieved future-oriented importance in the evaluation for the corpus iuris in late antiquity. Primarily on Paul , the equally the privilege of Zitierjuristen approached, the late antique go Paul Sentences back. The Lex Dei finally, the first comparison of the Roman and Old Testament criminal law, contains Epitome of a plurality of progenitor plants.

Various imperial constitutions also dealt with criminal law. At the turn of the 3rd to 4th century and at the gateway to late antiquity, the two successive Diocletian works of the Codices Gregorian and Hermogenianus as well as the Codex Theodosianus from the 5th century should be mentioned in particular . Finally, in the 6th century , Justinian summarized everything and had the compilation later called Corpus iuris civilis created , which also contained criminal material. Spread it on to the aforementioned gaianischen institutions regarding acquiring iustinianischen institutions (introduction textbook for beginners a legal education), the Digest (textbook for advanced students of the teacher education), notably the ninth book of the Codex Justinian (accumulation of past imperial constitutions) and the Novellae (Justinian's own constitutions).

Reception of Roman criminal law

From the beginning, the ecclesiastical penance and punishment practice received the Roman sources. In secular law, the glossators , who were the first to update the Roman legal sources believed to be lost, were followed by consultants , who gave legal operations the character of an independent criminal law science. The work of the consultants was influenced by Germanic views and legal institutions.

The clerical approaches of the canonists contributed to the fact that the criminal offenses received a moral and legal immanence. A clear criminal justice system was already recognizable in the late Italian Middle Ages.

The reception in Germany was based on the scientific preparatory work of the Italians.

literature

  • Christoph Heinrich Brecht : Perduellio: a study of its conceptual delimitation in Roman criminal law up to the end of the republic , partly also dissertation at the University of Munich, 1937, Beck, Munich 1938.
  • Henning Dohrmann: Recognition and fight against human sacrifice in Roman criminal law of the imperial era . Lang, Frankfurt am Main et al. 1995, ISBN 3-631-49375-4 ( European university publications 2), (At the same time: dissertation at the University of Freiburg (Breisgau), 1994).
  • Dangerous patches: crime in the Roman Empire. In: Marcus Reuter and Romina Schiavone (editors): Xantener reports , Volume 21, Martin Müller , Verlag Philipp von Zabern, Mainz 2011, ISBN 978-3-8053-4393-0 .
  • Wolfgang Haase, Hildegard Temporini-Countess Vitzthum , Joseph Vogt : Rise and Fall of the Roman World (ANRW) . History and culture of Rome as reflected in recent research. Literature of the Augustan period: individual authors , Part 2, Volume 31 - Part 3, Volume 31, De Gruyter, 1981, ISBN 978-31-1008-467-2 .
  • Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 276–286.
  • Franz von Holtzendorff : The deportation punishment in Roman antiquity: presented with regard to its origin and legal historical development , (reprint of the Leipzig edition 1859), Scientia Verlag, Aalen 1975, ISBN 3-511-09018-0 .
  • Wolfgang Kunkel , Martin Schermaier : Roman legal history , 14th edition. UTB, Cologne, Vienna 2005, § 2 ( Das ius civile der Frühzeit), pp. 41–44 and pp. 81–94.
  • Detlef Liebs : Before the judges of Rome. Famous processes of antiquity. , Verlag CH Beck, Munich 2007, ISBN 978-3-406-56296-9 .
  • Theodor Mommsen : Roman criminal law. (Systematic Handbook of German Law, Section 1, Part 4), 2nd Nd. of the edition Leipzig 1899, Aalen 1990.
  • Rolf Rilinger : Humiliores - Honestiores: on a social dichotomy in criminal law of the Roman Empire , at the same time habilitation thesis of the University of Cologne, 1979/80, Oldenbourg, Munich 1988, ISBN 3-486-54801-8 .
  • Artur Völkl : The prosecution of bodily harm in early Roman law: studies on the relationship between homicidal crimes and injuries , at the same time habilitation thesis at the University of Innsbruck, 1983, Böhlau Verlag, Vienna 1984, ISBN 3-205-07236-7 .
  • Moritz Voigt : The XII panels. History and system of civil and criminal law and process of the XII panels together with their fragments , 2 volumes, 1833 (Ndr. Aalen 1966).
  • Uwe Wesel : History of Law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . Pp. 169-178.
  • Roland Wittmann : The bodily harm to the free in classical Roman law , partly also dissertation at the University of Munich, 1971, Beck, Munich 1972, ISBN 3-406-00663-9 .

Remarks

  1. ↑ Uwe Wesel : History of the law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . P. 169 f.
  2. ^ Cicero , Pro Rabirio perduellionis reo.
  3. ^ Jochen Bleicken : Senate Court and Imperial Court. A study of the development of procedural law in the early principate. Göttingen 1962, p. 27.
  4. ↑ a b c d e f Christian Reinhold Köstlin : History of German criminal law in outline , ed. by Theodor Geßler, Tübingen, 1859 (posthumously; reprint Goldbach 1996), pp. 1-47 (pp. 1-6).
  5. ↑ Seneca , De ira I. 5, 14-16; II. 31; III. 19th
  6. ↑ Julius Friedrich Heinrich Abegg : The different criminal law theories in their relationship to one another and to the positive right and its history. A criminalist treatise . Neustadt ad Orla 1835 (Reprint Sauer & Auvermann, Frankfurt / M. 1969), pp. 78-105 (78-98).
  7. ↑ Cicero, De legibus II. 10; De Inventione II. 22. 54.
  8. ↑ Cf. Tacitus , Annales III. 26th
  9. ↑ Collection of pictures of historical figures from the Roman Republic
  10. ↑ Christian Reinhold Köstlin writes a treatise on this: The Perduellio under the Roman Kings , Tübingen, 1841.
  11. ↑ Presentations in various ancient sources, see above : Cicero, De legibus II. 9, § 22; Pliny in Naturalis historia XXVIII. 2; Livy in Ab urbe condita libri CXLII I. 26; Valerius Maximus in Facta et dicta memorabilia , 1. § 13.
  12. ↑ a b Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 276–286.
  13. ^ A b Rudolf Düll : Das Zwölftafelgesetz , texts, translations and explanations, Munich Heimeran Verlag, Tusculum-Bücherei, 1971, p. 71 ff.
  14. ↑ a b c Wolfgang Kunkel , Martin Schermaier : Römische Rechtsgeschichte , 14th edition. UTB, Cologne, Vienna 2005, § 2 ( Das ius civile der Frühzeit ), pp. 41–44.
  15. ^ Wolfgang Kunkel with Roland Wittmann : State order and state practice of the Roman Republic. Second part. The magistrate . Munich 1995, ISBN 3-406-33827-5 (by Wittmann completed edition of the work left unfinished by Kunkel). Pp. 577-579.
  16. ↑ Iulius Paulus , Digesten 47, 2,1,3: The offense of theft ( furtum ) was very broad: theft, embezzlement, concealment of finds, embezzlement, presumption of use or transfer of pledges.
  17. ^ Karl Gustav Geib : Textbook of German Criminal Law , reprint of the Leipzig, Hirzel, 1861 and 1862 edition, Goldbach: Keip (1996), pp. 35–37.
  18. ^ A b c d Christian Reinhold Köstlin : History of German criminal law in outline , ed. by Theodor Geßler, Tübingen, 1859 (posthumously; reprint Goldbach 1996), pp. 1-47 (pp. 8-20).
  19. ^ Primarily based on sources from Livius: Wolfgang Kunkel with Roland Wittmann : Staatsordnung und Staatspraxis der Roman Republik. Second part. The magistrate . Munich 1995, ISBN 3-406-33827-5 (by Wittmann completed edition of the work left unfinished by Kunkel). Pp. 630-637.
  20. ↑ Cicero , De legibus 3.44.
  21. ^ Wolfgang Kunkel with Roland Wittmann: State order and state practice of the Roman Republic. Second part. The magistrate . Munich 1995, ISBN 3-406-33827-5 (by Wittmann completed edition of the work left unfinished by Kunkel). Pp. 630-637.
  22. ↑ Polybios , Historíai VI. 14th
  23. ^ Alfred Söllner : Introduction to Roman Legal History , 4th edition, Munich 1989, § 10 I.
  24. ↑ a b Wolfgang Waldstein , J. Michael Rainer: Römische Rechtsgeschichte , 10th edition, Munich 2005, § 12 Rn. 6, 12.
  25. ↑ Ulrich Manthe : History of Roman Law (= Beck'sche series. 2132). Beck, Munich 2000, ISBN 3-406-44732-5 , pp. 54-56.
  26. ^ Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 12 no. 17 (p. 203).
  27. ↑ Max Kaser (greeting), Rolf Knütel (arrangement): Roman private law . 17th edition Beck, Munich 2003, p. 315, ISBN 3-406-41796-5 .
  28. ^ Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , pp. 163 and 168.
  29. ↑ 7th book on the provincial edict of Gaius and 18th book on the edict of Ulpian .
  30. ↑ Digest 9.2.2.pr .; Digests 9.2.27.5.
  31. ^ Paul Jörs , Wolfgang Kunkel , Leopold Wenger : Römisches Recht. 4th edition. New York, Berlin, Heidelberg 1987, revised by Heinrich Honsell , Theo Mayer-Maly , Walter Selb , p. 368.
  32. ↑ Institutiones Iustiniani 4,3,16.
  33. ^ Max Kaser : The Roman private law . 2nd Edition. CH Beck, Munich / Würzburg 1971, ISBN 3-406-01406-2 , § 39, pp. 146-150, § 142, pp. 609-614, § 143, pp. 614-619; § 145, pp. 623-625; § 146, pp. 625-630; § 147, pp. 630-634.
  34. ^ Nils Jansen: The structure of liability law. History, theory and dogmatics of non-contractual claims for damages. Jus privatum 76, XXI, Tübingen 2003, p. 187.
  35. ^ Joachim Ermann: Research on Roman law; Criminal proceedings, public interest and private prosecution: Investigations into the criminal law of the Roman Republic , Böhlau Verlag, Cologne, Weimar, Berlin, 1999, ISBN 3-412-08299-6 , Die Bacchanalien, The substantive legal bases of the proceedings , pp. 23-27.
  36. ^ Papinian , Digest 2, 14, 38.
  37. ↑ Herbert Hausmaninger, Walter Selb: Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 31.
  38. ↑ Plutarch : Cicero 48-49 . Seneca the Elder : Suasoriae 6.17; 6.22 (= Livius : Ab urbe condita , fragments 59 and 60). Cassius Dio 47.8.4 .
  39. ↑ Appian : Civil Wars 1,95,441.
  40. ^ Wolfgang Kunkel , Roland Wittmann : State order and state practice of the Roman Republic: Section. Die Magistratur , Verlag CH Beck, Munich 1995, ISBN 3-406-33827-5 , p. 707.
  41. ↑ Claudia Klodt : Cicero's speech Pro Rabirio Postumo: Introduction and Commentary , Contributions to Antiquity , Volume 24, BG Teubner Stuttgart, 1992, p. 53 f.
  42. ^ Wolfram Letzner : Lucius Cornelius Sulla. Attempt a biography . In: Writings on the history of antiquity , Volume 1, Münster 2000, ISBN 3-8258-5041-2 , p. 284 f; attributed to: Cicero, Epistulae ad familiares 3, 6, 3.
  43. ↑ Plutarch : Pompey , 25. 48.
  44. ↑ a b c d e f Wolfgang Kunkel, Martin Schermaier: Römische Rechtsgeschichte , 14th edition. UTB, Cologne, Vienna 2005, § 2 ( Das ius civile der Frühzeit), pp. 81–94.
  45. ^ Jochen Bleicken : Senate Court and Imperial Court. A study on the development of procedural law in early prizipat , Göttingen 1962; Wolfgang Kunkel: About the origin of the Senate Court , in: Small writings. On Roman criminal proceedings and Roman constitutional history , Weimar 1974.
  46. ↑ This meant: Absolvo te (A) : “I speak freely.” (The letter A on the voting board stood for the acquittal of a delinquent). Condemno (C) : "I condemn." (The letter C on the voting board stood for the condemnation of a delinquent); Cicero : Pro Milone 15.
  47. ^ Christian Reinhold Köstlin : History of the German criminal law in outline , ed. by Theodor Geßler, Tübingen, 1859 (posthumously; reprint Goldbach 1996), pp. 1-47 (pp. 30-39).
  48. ↑ It was questionable whether the opinio necessitatis was recognized as an act of legal positivity like a legislative act. In the affirmative, for example, Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher), p. 17 ff .; 23; 32; Negative: Werner Flume : Customary Law and Roman Law , Rhenish-Westphalian Academy of Sciences , Lectures G 201, 1975.
  49. ↑ a b Detlef Liebs : Roman law. A study book (= UTB . 465). Vandenhoeck and Ruprecht, Göttingen 1975. 6th, completely revised edition 2004, ISBN 3-8252-0465-0 , 1st chapter 2d).
  50. ^ Franz Wieacker : Roman legal history , second section, 1st edition, Munich 2006, § 43 IV 1.
  51. ^ Max Kaser, Rolf Knütel: Römisches Privatrecht , 19th edition, Munich 2008, § 80 Rn. 21st
  52. ^ Suetonius , Claudius 14-15; Seneca , Apocolocyntosis , 4/10.
  53. ^ Herbert Hausmaninger, Walter Selb: Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 33; 386 f.
  54. ↑ Cf. Richard Schott: Roman Civil Process and Modern Process Science : Controversial Issues from the Form Process, Scienta, Aalen 1985, ISBN 3-511-09187-X .
  55. ^ Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 1 no. 22; Herbert Hausmaninger, Walter Selb: Roman private law . Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 386–388.
  56. ↑ Ulpian , Digesten 48,19,8,9.
  57. ↑ Ulpian, Digesten 48,19,5 pr .: Sed nec suspicionibus debere aliquem damnari divus Trajanus Adsidio Severo rescripsit: satius enim esse impunitum reliqui facinus noscentis quam innocentem damnari.
  58. ↑ Uwe Wesel: History of the law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . P. 173.
  59. ↑ CTH 15.12.1.
  60. ↑ 1700 years “Constantine Turn” accessed on September 11, 2018.
  61. ↑ Christian Meier : An Attack of Democracy on Philosophy? Condemnation and death of Socrates. In: Uwe Schultz : Large processes. Law and Justice in History . Verlag CH Beck, Munich 1996, ISBN 3-406-40522-3 . Pp. 21-31; Peter Scholz : The trial against Socrates. In: Leonhard Burckhardt , Jürgen von Ungern-Sternberg (eds.), Great Trials in Ancient Athens , 2000 pp. 157–173; ( Plato : Euthyphron , Apology, Phaedo).
  62. ^ Wolfgang Kunkel: Small writings. On the Roman criminal proceedings and the Roman constitutional history. , Böhlau, Weimar 1974. pp. 20 f. ( cognitio ).
  63. ↑ Matthew 26.47–27.56; Mark 14.43-15.41; Luke 22.47-23.49; John 18.1-19.37.
  64. ↑ a b Uwe Wesel: History of the law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . P. 161.
  65. ↑ Mark 14.63 f.
  66. ↑ Tacitus , Annales 15.44.3.
  67. ^ Institutiones Gai III, § 182–285.
  68. ↑ PS V. 13-37.
  69. ↑ Lex Dei coll. After Bluhme
  70. ↑ Corpus Iuris Civilis is not a contemporary term, it comes from the humanistic epoch of the late 16th century and was coined by Dionysius Gothofredus in 1583; see. to Heinrich Honsell : Roman Law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 17 f.
  71. ^ Okko Behrends , Rolf Knütel , Berthold Kupisch , Hans Hermann Seiler : Corpus Iuris Civilis. The institutions. Text and translation. 3rd, revised edition. 2007, forewords.
  72. ↑ Ulrich Manthe : History of Roman Law (= Beck'sche series. 2132). Beck, Munich 2000, ISBN 3-406-44732-5 , p. 112.
  73. ↑ Wolfgang Kunkel , Martin Schermaier : Römische Rechtsgeschichte , 14th edition. UTB, Cologne / Vienna 2005, § 11, pp. 221–223 ( The legal development of the late period up to Justinian ).
  74. ^ Franz Wieacker : History of private law in the modern era with special consideration of German developments . 2nd Edition. Vandenhoeck u. Ruprecht, Göttingen 1967, ISBN 3-525-18108-6 . P. 124 ff. (137).
  75. ^ Basically: Hermann Kantorowicz : Albertus Gandinus and the legal life of scholasticism. Vol. I / II (1907/1926); also: Georg Dahm : The criminal law of Italy in the late Middle Ages. Studies on the relationships between theory and practice in criminal law of the late Middle Ages, namely in the XIVth century De Gruyter, 1931, Reprint 2014. ISBN 978-3-11-164104-1 .
  76. ^ Eberhard Schmidt : Introduction to the history of the German criminal justice system. Vandenhoeck & Ruprecht, Göttingen 1965. P. 149 ff.