Purposes and Functions of Public Punishment in Roman Law in the Perspective of Justinian's Codification

Abstract

The objectives and functions of the punishment for a public offence (crimen) had already been discussed by M. Tullius Cicero, Seneca the Younger, or Aulus Gellius many centuries before Emperor Justinian. According to their statements, the Romans distinguished in principle all the types of punitive functions known today: deterrence (special and general prevention), reprisal (retaliation), elimination (protection of society against the perpetrator), and even the rehabilitation (educative) function. The emergence of the imperial judiciary extra ordinem in criminal matters could have been conducive to performance of various functions assigned to various penalties, along with the possibilities offered by the discretionary power of judicial decisions. However, when reading Emperor Justinian’s Constitutio Tanta and the numerous accounts from the Roman jurists included in his codification, contained in Book 48 of the Digest, one may be convinced that the function of paramount importance for the emperor was to deter potential perpetrators by means of severe penalties, including notably the death penalty. The educational function was rather marginal. The primary objective of the imperial criminal policy was the ruthlessly severe punishing for criminal offences (severitas, atrocitas) and the implementation of the postulate of inevitability of criminal responsibility.