Criminal law principles in the legends of ancient Rome

• Published in: Vestnik Rossiĭskogo universiteta druzhby narodov. Serii͡a︡ I͡U︡ridicheskie nauki Vol. 26; no. 4; pp. 921 - 937
• Main Author: Nikulina, Viktoriya A.
• Format: Journal Article
• Language: English
• Published: Peoples’ Friendship University of Russia (RUDN University) 15-12-2022
• Subjects: ancient rome; criminal law; legal consciousness; legal custom; object of criminal law protection; precedent; principles of responsibility; roman law
• ISSN: 2313-2337; 2408-9001
• DOI: 10.22363/2313-2337-2022-26-4-921-937

The description of the history of early Rome (VIII-IV centuries BC) in the works of ancient authors is usually perceived as a mythological legend, which shifts the focus of scientific discussion to assessing the degree of reliability of the events being told. As a result, the normative-value and legal significance of ancient legends sufficient attention of researchers. The oral and therefore naturally plastic nature of archaic law creates additional difficulties for its modern study, in contrast to numerous and well-studied legislative texts. The author proposes to refer to modern types of legal understanding and turn down strict positivism with the aim of expanding the boundaries of legal analysis, rethinking the legend (on the example of Lucius Junius Brutus), recognizing it as a source of Roman law, and reconstructing its criminal law content. For this purpose, using socio-psychological, historical-legal, formal-logical and other scientific methods, the author singles out that part of the story that was not lost, but was steadily reproduced from generation to generation. The surviving core of the legend remained in history because it carried socially significant information modeling of behavior (behavioral stereotypes) of the ancient Romans. The article shows that children`s execution by the first republican magistrate not only legitimized the right of paternal power (patria potestas), but also proclaimed the priority protection of the public interest (civitas) that became the cornerstone of the Roman legal order. The legend set a special imperative for citizens, shaped their worldview and sense of justice. From the criminal law standpoint, this precedent fixed the standard of both prohibited behavior and retribution for it, i.e., a measure of justice, broadcast the requirements of the inevitability and personal nature of responsibility, laid foundation for the requirement of legal equality of all citizens before the law. Ultimately, the legend set the vector for the development of Roman criminal law, which led to the formation of its principles, many of which are accepted and developed in modern legal systems.