The Roman roots of Criminal Law – the legacy of antiquity in light of the modern regulation of necessary defence and the specificity of Art. 25 of the Criminal Code

Abstract

The article attempts to analyse the institution of indispensable defence in criminal law, indicating its origins in ancient Rome and showing the evolution of this construction against the background of the contemporary regulation contained in Art. 25 of the Penal Code. The author verifies the popular thesis that Cicero was the creator of the counter-truth of indispensable defence, showing that the defence speech in Milon’s trial was not the source of this institution, but referred to norms previously established in Roman common law and the Law of the Twelve Tables. The historical-dogmatic analysis shows that the Roman rules, despite their limited scope and casuistic nature, contained prerequisites for the defence of necessity identical to those found in the current legal order: the directness and unlawfulness of the attack, the proportionality of the defence and the necessity of the defence. It also discusses in detail the views of Roman jurists (including Gaius, Ulpian and Paulus), whose statements indicate the existence of the original basis of this institution in Roman law. The article also addresses interpretative controversies arising from the current Art. 25 of the Criminal Code, such as the limits of permissible defence, the issue of intensive and extensive excesses, and the question of the awareness of the defending person. The author argues that despite legislative progress, the contemporary regulation is not free of normative shortcomings and points to the need to clarify the provisions and raise public awareness of the right to necessary defence. In conclusion, the author concludes that although the institution of necessary defence was not first formulated by Cicero, its foundations are inextricably linked to the Roman tradition, and modern criminal law is a continuation of this centuries-old line of development of legal thought.