Introductory remarks

Roman criminal law may be defined as a system of conduct-guiding rules backed by sanctions which were laid down by the organs of the state for

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the protection of common or collective interests.

The enforcement of these rules was guaranteed by the machinery of the state through a system of publicly verifiable procedures. But Roman law provided for the punishment not only of those who committed offences against the state, but also of those who violated rules aimed at the protection of private interests. The former were subject to a public form of criminal trial and the penalties inflicted upon them were similarly of a public nature. The latter were subject to prosecution not by the state but by the injured party according to the procedures of private law and, if condemned, had to pay a penalty to the person or persons harmed. In this respect, the term delictum denoted an unlawful act causing damage to a private interest; on the other hand, the term crimen signified an unlawful act directed against the state, or the community as a whole. In the category of delicta privata fell, for example, offences such as theft (furtum), bodily injury (iniuria), robbery (rapina), defamation of character and damage to another person's property (damnum iniuria datum)."⁰ On the other hand, offences such as treason and murder were classified as criminapublica and were subject to prosecution by state organs. The development of Roman criminal law was closely connected with the development of the procedures through which offences were investigated and punished. In other words, it was the public or private nature of the formal process adopted in dealing with different types of unlawful conduct that determined the classification of an offence as a crimen or a delictum and the forms of punishment that were imposed. It should be noted here, however, that even though in general we may speak of the Roman criminal law as belonging to the domain of public law, the line of demarcation between the spheres of public and private law was far from clear, especially in the archaic period of Roman law. With respect to the archaic period the reader should keep in mind, moreover, that very little can be said with certainty about the nature and operation of the norms relating to wrongdoing and punishment, and early Roman criminal law remains both obscure and subject of much debate among scholars.

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