Roman Law and the Virtual Death Penalty
posted by Nate Oman
Criminal law is not really my area of interest, but some reading in Roman law has got me thinking about the death penalty. I’ve always found Roman history — particularlly the Republican period — very interesting and were I better at languages I would love to have been a classicist. Roman politics, especially in the late Republic, was a full contact sport as it were. Bribery, organized violence, assination, and — most importantly — criminal prosecution were an ordinary part of political hard ball.
If you read the texts of various Roman laws, particularlly very early legal texts like the Twelve Tables, it is awfully bloody minded stuff. (My favorite provision is the one that allows a debtor’s creditors to divide shares, meaning literally that they could dismember his body for non-payment of debts, presumeably on a pro rata basis.) In practice, however, the Romans were remarkably fastidious about killing one another. There was no system of incarceration, and generally speaking citizens were never executed. On the other hand, numerous Roman laws did call for the death penalty. In practice, however, someone sentenced to death was given several days before the sentence was carried out in which they could either kill themselves (this was a way of preserving the family estate) or go into exile. Indeed, by the late Republic the assumption was that a death sentence, particularlly for a political crime such as treason, was a de facto sentence of exile.
I suspect that moderns are incapable of really feeling what exile meant for an ancient Roman, the horror of being seperate from the graves and shrines of one’s ancestors, the loss of citizenship (which was a religious as well as a civic event; indeed there was precious little distinction between the concepts), etc. etc. Of course in the social breakdown of the late Republic, many an exiled Roman patrician was happy enough to enjoy life in some Greek speaking city like Athens or Rhodes. Still, exile was a death of sorts.
The interesting thing to me about the Roman practice of exile is that it seemed to allow the community to maintain the appearance and practice of capital punishment without actually killing anyone. The civitas could express its ultimate moral and legal condemnation — “This many is worthy of death” — without actually making the irrevocable step of strangling the guilty party, or at least not strangling all that many guilty parties. It was a kind of virtual death penalty.
May 4, 2007 at 2:35 pm
Posted in: Capital Punishment, Criminal Law, History of Law
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Responses (4)
Mike O'Shea - May 4, 2007 at 4:02 pm
Interesting. I half-expected you to say that we are approaching such a system in the U.S. A number of states have the death penalty, and indeed sentence offenders to death, yet rarely carry out an actual execution, whether due to delays imposed by multiple layers of judicial review, or for other reasons.
Doug Berman often claims (I’m simplifying a bit) that in recent years, Texas has been the only state that routinely executes.
Patrick S. O'Donnell - May 4, 2007 at 4:45 pm
Nate,
Not having ready access to either Adriaan Lanni’s Law and Justice in the Courts of Classical Athens (2006) or the Cambridge Companion to Ancient Greek Law (2005), I can’t make the comparison with classical Greece, so I’m wondering if you know how Roman Law differed from Greek Law on this score. Thanks.
Chelsea - May 19, 2008 at 4:56 pm
this really help me for my latin project!! NOT
lucy - November 1, 2009 at 11:33 am
what does s.p.q.r mean
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