Quietis publicae perturbatio: Revolts in the Political and Legal Treatises of the sixteenth and seventeenth Centuries (original) (raw)
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JUSTICE, PEACE AND POLITICAL DISSENT FROM THE EARLY MIDDLE AGES TO THE COMMUNAL PERIOD
The 'institutional' affairs that unfolded between the early and late Middle Ages can be (and have been) reconstructed in varying degrees of detail through diplomas, documents and chronicles. Regarding Italy, there is also another source that up to now has been rather ignored, and which might offer some insight into the more strictly legal aspects of these events. Specifically, I am referring to eleventh-century Italian jurisprudence on political crimes. Indeed, legal stances on the repression of dissent, on the justification of resistance to authority and on making peace between 'private' parties can be found in the Expositio to the Liber Papiensis, in the legal formulary and in some glosses appearing in manuscripts which were still in use in the 1130s. These sources shed light on the expression and organization of political struggle in the Kingdom of Italy – be it through rebellion, protest or association – and on how that was perceived by the legitimate authorities. By studying them, it is possible to analyze how the concept of justice and institutions evolved from the early Middle Ages to the communal period. Summary: 1. Society and law at the birth of the commune – 2. Justification, reconciliation, exile: Political dissent in the early Middle Ages a) Peacemaking between private parties, b) Causae publicae: Rebellion (seditio) without the king's authorization c) Protests against 'just' rulings issued by public authorities, d) Adunationes, collectae and cospirationes of private individuals and holders of public office: Punishment by exile – 3. The interpretation of rules on rebellions and political associations in the expositio and glossae to the Liber papiensis (11th-12th centuries), a) Negligence on the part of the authorities: Strict interpretation of justification for rebellion, b) Negligence on the part of the authorities: Extending justification to sworn unions – 4. Conclusions
Crimen Maiestatis and the Poena Legis during the Principate
It has been argued that during the reign of Roman emperors the crime of lèse-majesté was punishable by death, and the arbitrariness of its prosecution has been considered one of the negative aspects of this era. However, the debate on the origin, date and content of the law, which should have formed the frame for all trials, the lex Iulia maiestatis, has not been sufficiently concluded. The paper will attempt to prove that it was the aquae et ignis interdictio, i.e. non-voluntary exile, not death, that remained the poena legis during the Principate; death could also be inflicted, but not as the legal penalty. The possibilities of the cognitio extra ordinem, which spread from the beginning of the Principate, and the role of the Senate will be duly considered. Please note, this is a preprint version, before final corrections!
2018
Après l ’étouffement de la révolte antiespagnole qui ravagea l ’Italie du Sud en 1647-1648, le spectre de Masaniello continua de hanter la conscience des groupes privilégiés. À travers l ’examen des récits des émeutes et des traités de certains juristes, l ’article analyse les raisons pour lesquelles les protestations populaires survenues dans le Royaume de Naples jusqu’à la fin du XVIIIe siècle furent souvent perçues, en référence à la révolte de Masaniello, comme des éclats de fureur plébéienne.
Severitas and Clementia in Punishing the Crimen Maiestatis from Principate to Dominate
In this paper, the image of immense cruelty of emperors and their officials under the Dominate, presented with lots of details by Ammianus Marcellinus, will be discussed as an aspect of the emperors’ attitude towards the law in political charges evolving from the Principate to the Dominate. Using the example of judicial torture which should have been excluded in criminal trials of free citizens until the late Principate, and of trials mostly concerning political magic that supplied one of the most questionable sort of charges during the Dominate, the paper endeavors to demonstrate that atrocities formed part of the criminal investigation already under the Principate while death was not the only punishment for crimes associated with politics under the Dominate, even though the law recommended it.
Much debate has centred on the Elias Norbert's concept of the civilizing process, the transformation of Early Modern Europe from an uncontrolled society, in which people could not govern their impulses, to a "civilized" society. This process, aided by the imposition of new social and religious norms. However, Natalie Zemon Davis has remarked that, in order to achieve a well-rounded knowledge on the construction of personal identity, scholars must investigate more than the processes of «réinscription du pouvoir», as suggested by Foucault, but also observe people's oppositions to the power. Using judicial records, which demonstrate the resistance to governmental authority and rebellion against repression, the aim of this paper is to show how, in late Sixteenth-century, Romans reacted to the progressive criminalization of behaviours. This is attested by the increasing number of trials for attacks against the sbirri, the constables of the Governor's Court, Rome's main judicial authority.
2024
The « fama communis » or « publica » (« common fame » or « renown ») held an increasingly important place in judicial sources from 1150-1200 onwards. Its new significance should be correlated with the development, within ecclesiastic and secular jurisdictions, of procedures of an inquisitorial nature. « Fama » and inquisitorial justice were indissociably at the heart of a judicial and governmental revolution that was also, more broadly, socio-political and cognitive. It is difficult for medievalists to escape the inclination to consider « fama » to be factual data, as it is presented in the sources. But « fama » always required the validation of the judicial authority to take effect – meaning to hold value as an element of proof, to instigate a trial, to authorise a testimony, or to justify the use of torture. It was the key-element of a system of communication dominated by the central authorities. Far from being a force that emanated from the self-organisation of the social world, « fama » was indissociable from relationships of power involving the central institutions that were developing, with a public vocation, and the communities that they brought under their control. « Fama » amounted to a framework of « negotiations » between institutions and society, specific to the first centuries of central power in the West. The competence and prerogative of veridiction, monopolised by public authorities, were the foundation of a specific governmentality, the strategies of both the individual players and the institutions being organised according to the « fama »/« veritas »couple.
This paper will investigate the errors that can make the judgment null and void and, therefore, produce the reversal of the res judicata. Res judicata is considered the irrevocable end of a correctly constructed judicial proceeding. We will try to find out what, in the Sixteenth and Seventeenth centuries, gives substance to this assumption in order to better understand the discipline of the miscarriage of justice of the time. We will see what the differences are between final judgment and res judicata; the elements which constitute the authority of the res judicata and the iuris et de iure presumption which gives it foundation; and the judicial errors made in a criminal judgment that are taken into consideration by the jurists. The errors that can be made by the judge while judging are directly proportional to the powers entrusted to the judge itself by the political order within which he operates. The power of judging and the duty to do it according to certain rules converge upon the figure of the judge. The res judicata produces effects precisely because it is the result of the correct interaction between such power and such duty. The power of judging which the political order entrusts to the judge is limited by the fact that he has carried it out within the rules established by the same political order. The widening and narrowing of these limits have repercussions on the irrevocability – or better, on the capacity of not being rescindable – of the res judicata which, in the most extreme hypothesis, could be valid and therefore produce its effects even in the case where the judge operates without respecting the rules . The sources that have been consulted for this paper are essentially of a doctrinal nature and they refer to a period that goes from the end of the Fifteenth to the Seventeenth century. Jurists, that have been taken into consideration, belong to the territories of present-day Germany and central-northern Italy and are known as ius commune jurists.
A penal code is one of the most sensitive points of interaction between the political system, legal system, and mentality of a society. 1 Its catalogue of punishable offenses, the character of the punishments to be imposed, and not least the textual legitimation strategies of this sphere of state authority give us insight into the self-understanding of a society and its prevailing anxieties and traumas. Thanks to comparatively good source material, this is also true for the Imperium Romanum in the fourth century after Christ, the penal legislation of which can be traced under the relevant tituli of the late-antique law codes-in particular, Book IX of the Codex Theodosianus. It is more difficult, however, to penetrate through the normative rhetoric in which the subject matter is typically embedded to an empirical understanding of the actual degree and frequency of violence in late-antique society. We often lack reliable evidence for the nature and the prevalence of criminal activity in this period, as well as for actual penal practice, while such evidence as we do possess is extremely difficult to interpret: the res gestae of Ammianus Marcellinus with their vivid scenes of torture and executions stand at the center of attention in this context. Yet Ammianus, like the imperial historians in general, 2 was more interested in scenes of exceptional violence committed by individual governors or at politically motivated trials than in the everyday business of the courts. The same is true, mutatis mutandis, of the second important group of literary sources, namely, Christian authors, who tend to emphasize the brutality of the persecutions and the heroic suffering of the martyrs. 3 This chapter is not about quantifying levels of criminality and the measures taken to combat it. 4 I propose rather in this chapter to view late-antique penal 1