State-sponsored torture in the name of public safety: warnings from the Roman legal experience

Mandas, Anna Maria

2020-01-01

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Abstract

Moving from recent proposals, advanced especially in the US political and academic de- bate in the wake of the 9/11 terrorist attacks, to reintroduce torture as a legal tool to pro- tect national security, the present article aims to analyze the normative developments re- garding the use of torture in the Roman legal experience, with a view to highlighting the risk of a gradual, but inexorable, expansion of the criminal offences allowing for its ap- plication. Indeed, although it is well-known torture was an integral part of the Roman judicial system and never emerged the idea of entirely abolishing it, one should not ne- glect that the quaestio per tormenta on freemen, which had been expressly forbidden for centuries, was initially admitted – only by way of exception – precisely for those hypoth- eses falling within the scope of the crimen maiestatis and, hence, for those crimes that could potentially endanger the established order, but ended up being applied to a far wid- er range of hypotheses.