Criticism of the actio ad palinodiam

As far as the amende honorable was concerned, there were, as we have seen,²⁹⁵ quite often penal elements involved which were no longer regarded as appropriate in a private-law remedy.

Quite apart from that, there was also the awkward problem of enforcement. If the offender was not prepared to recant, to furnish the required declaratio honoris, or to pray for forgiveness, he had to go to gaol or to a penitentiary until he gave in. Occasionally, a hangman was asked to act in his place (and presence).²⁹⁶ But what value could a declaration thus enforced have for the victim of the insult? Not even he, let alone anybody else, could seriously believe, under these circumstances, that the offender regretted the incident and regarded the plaintiff as a man of honour, after all. If anything, it was only a rather shallow kind of satisfaction that a plaintiff could obtain by instituting the actio ad palinodiam. Most importantly, perhaps, it was now argued²⁹⁷ that this remedy did not even serve a useful restitutionary purpose. The honour of a person as such, his dignitas, so the argument ran, can never be affected by an insult. Thus, the actio ad palinodiam cannot "restore" anything to a person that has not been taken away from him in the first place. What can, however, be impaired by the iniuria is the esteem in which that person is held by others (his reputation, or fama). Yet, even in this regard the action is unnecessary, for a person's injured reputation is already restored when the offender is punished.²⁹⁷⁷

5.

More on the topic Criticism of the actio ad palinodiam:

1. CHAPTER IX. THE SLAVE AS MAN. IN COMMERCE. ACTIO DE PECULIO. ACTIO TRIBUTORIA.
2. 5.3 Koschaker’s criticism of the Historisierung of Roman law
3. For the benefit of those who wish to delve deeper into the study of Roman law, and as a prelude to all textual criticism and research on Roman legal institutions, attention should be called to the scores of technical aids which facilitate study in the field.
4. The legis actio procedure
5. ACTIO DE PECULIO
6. The Legis Actio Procedure
7. The actio pro socio
8. ACTIO TRIBUTORIA
9. The actio negotiorum gestorum contraria
10. Liability under the actio empti