Who’s Your Daddy? Explaining the Rise of Roman Criminal Law
Michael Brazao
Hirundo: the McGill Journal of Classical Studies, Vol.3 (2004)
Abstract
As a staunchly patriarchal society, it can be said with confidence that Ancient Rome firmly adhered to the adage that “father knows best.” This was certainly true in the eyes of the law, where under countless scenarios, ranging from contracts to delicts, political office to family affairs, the paterfamilias enjoyed a preeminent position vis-à-vis those who were subject to his potestas. But what was the position of the paterfamilias with respect to the criminal law? Criminal law may be defined asthe promotion of public order through the imposition of penalties by the state in response to antisocial or deviant behaviour. As Roman society progressed from Monarchy to Republic to Empire, it witnessed a manifold increase in the application of criminal law measures to its populace. Interestingly, the ascendancy of this public institution coincided with the decline of another, more private mechanism for regulating human behaviour: the domestic jurisdiction exercised by the paterfamilias.
The present analysis proposes that the antithetical relationship betweenRoman criminal law and paterfamilial potestas may be illuminated by the writings of the eminent political philosopher Thomas Hobbes in his seminal tome Leviathan. After examining certain fundamental Hobbesian precepts, the present author will attempt to demonstrate how they may explain the gradual increase in the paternalistic role of the Roman state, whereby it assumed many of the “fatherly” rights and responsibilities once possessed by the head of the Roman household. This Hobbesian analysis will proceed in two parts: first, the growth of Roman criminal procedure will be considered in light of its turbulent historical context; second, the expansion of substantive Roman criminal law will be related to the gradual aggrandizement of the Roman state.
Who’s Your Daddy? Explaining the Rise of Roman Criminal Law
Michael Brazao
Hirundo: the McGill Journal of Classical Studies, Vol.3 (2004)
Abstract
As a staunchly patriarchal society, it can be said with confidence that Ancient Rome firmly adhered to the adage that “father knows best.” This was certainly true in the eyes of the law, where under countless scenarios, ranging from contracts to delicts, political office to family affairs, the paterfamilias enjoyed a preeminent position vis-à-vis those who were subject to his potestas. But what was the position of the paterfamilias with respect to the criminal law? Criminal law may be defined asthe promotion of public order through the imposition of penalties by the state in response to antisocial or deviant behaviour. As Roman society progressed from Monarchy to Republic to Empire, it witnessed a manifold increase in the application of criminal law measures to its populace. Interestingly, the ascendancy of this public institution coincided with the decline of another, more private mechanism for regulating human behaviour: the domestic jurisdiction exercised by the paterfamilias.
The present analysis proposes that the antithetical relationship betweenRoman criminal law and paterfamilial potestas may be illuminated by the writings of the eminent political philosopher Thomas Hobbes in his seminal tome Leviathan. After examining certain fundamental Hobbesian precepts, the present author will attempt to demonstrate how they may explain the gradual increase in the paternalistic role of the Roman state, whereby it assumed many of the “fatherly” rights and responsibilities once possessed by the head of the Roman household. This Hobbesian analysis will proceed in two parts: first, the growth of Roman criminal procedure will be considered in light of its turbulent historical context; second, the expansion of substantive Roman criminal law will be related to the gradual aggrandizement of the Roman state.
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