Principles of criminal liability and punishment

As has been noted, in the context of the cognitio extra ordinem the judge had considerable freedom in conducting the investigation and in determining the nature and gravity of the offence and the form of punishment to be imposed.

Offenders might be treated differently, depending upon the circumstances in which the crime was committed, but also upon the offender's age, sex, state of mind and social and legal status. The idea of equality before the law played no part in Roman criminal law. There were, however, some general norms pertaining to the conditions of criminal liability and punishment - norms developed by the jurists and established through imperial enactments and the practice of the courts.^{^[1056]}Some of these norms were concerned with procedural matters whilst others pertained to the requirements of criminal responsibility, such as conduct, intent and defences. Thus, it was recognised that criminal punishment should only be imposed by a competent judicial organ acting in accordance with a pre-existing law;^{^[1057]}⁵ and should there be genuine uncertainty as to which of two (or more) statutes applied, the milder one (i.e. the one entailing the less severe penalty) should be given priority.^{^[1058]} It was held, moreover, that persons accused of crimes should be duly notified of the charges and given the opportunity to defend themselves in a court of law;^{^[1059]}and a person should not be punished as a criminal before the final decision of the court had been pronounced nor should he be tried for the same offence twice;^{^[1060]} the descendants or heirs of a convicted criminal should not be stigmatised for the latter's crime, for criminal responsibility was seen as personal and as such its consequences should be borne by the offender only.^{^[1061]}[1062] It was accepted, further, that criminal liability and punishment presupposed an overt act - a person should not be punished for thoughts alone.¹⁵ Moreover, for the commission of a crime a guilty intention {dolus) was normally required, although in some cases recklessness might be sufficient. Children under the age of seven were excluded from criminal liability as being incapable of forming a guilty intention.^{^[1063]} Lunatics were also exempted from punishment on similar grounds, although they might be kept under restraint if they posed a threat to public safety.^{^[1064]} A person was not criminally liable if he caused a prohibited harm by accident.^{^[1065]} However, mistake or ignorance as to the law, in contrast to mistake of fact, did not preclude culpability, for citizens were under a duty to know the law.^{^[1066]} Certain categories of persons, such as minors (under the age of twenty-five), women and country dwellers, were treated with leniency if found guilty of certain offences or when they caused harm due to ignorance of the law.^{^[1067]} Roman law also recognised a number of general defences and mitigating pleas which negated or reduced culpability for a criminal act, such as self-defence,^{^[1068]} superior orders,^{^[1069]}loss of self-control,^{^[1070]} duress and necessity.^{^[1071]} It was acknowledged, moreover, that offenders should not be subjected to excessive or unnecessary punishment, especially when they were weak in body or mind.^{^[1072]}

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

Principles of criminal liability and punishment

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