law of the modern West was founded, especially outside the English speaking countries with their common law tradition. We may thus fairly ask how the theory and practice of capital punishment were related to the rest of their law by the ancient Romans. How did the Romans derive their ideas about capital punishment? What purpose or purposes did it serve, in their view? How did they develop those views as time went on? And what, if anything, did they contribute to the debate on the morality and effectiveness of capital punishment, a debate which continues loudly today?
We may answer these questions, briefly, in the negative. The Romans, so far as we can tell, inherited no philosophical ideas about capital punishment. In early Rome, the imposition of capital punishment was determined by custom, which outlined the offenses to be so punished, the procedures for trial, and the place and means of execution of the sentence. Over the centuries of their dominion, the Romans elaborated their criminal code as the complexity of their society grew, and with it the range of possible criminal acts. They developed rational means of trial. The adopted new means of imposing capital punishment from the peoples they ruled, including probably the practice of crucifixion.
1Herbert J. Muller, Freedom in the Ancient World (New York: Bantam Books, 1961), 285.
2Ibid. What the Romans did not do, so far as we can tell, is think very much about capital punishment or, indeed, about criminal law in general. Roman jurists devoted little of their attention and analysis to problems of criminal law.3 The reason is that they found little of analytical interest in criminal law questions. The Romans were not intellectual speculators by nature. Their interest in law grew out of their desire to resolve practical problems in a logical, workable, and consistant way. What we now call civil law cases offered broad scope for their ...