Sarah Bond: Drawing Lines: Torture in Roman Law

Torture was a regularized part of the criminal justice system in Roman antiquity, but its use and abuse changed over time. Our most extensive knowledge regarding the reasons for and application of state-sanctioned torture comes from the jurist Ulpian. The Syrian’s straightforward writings were highly influential from the late second and early third century CE, when he lived and wrote, into the period of Late Antiquity. His opinions make up about a third of the Digest of the emperor Justinian (533 CE).  In fact, the jurist got pride of place within the Digest by having an excerpt of his Institutes introduce the first book:

est autem a iustitia appellatum: nam, ut eleganter celsus definit, ius est ars boni et aequi.’

However, (the law) obtains its name from justice; for, as Celsus elegantly defines it, law is the art of knowing what is good and just (Ulp. Dig. 1.1.1pr.)

Ulpian’s philosophy of law certainly appears profound, but what exactly did ‘boni et aequi’ mean? Without a clear, immutable definition, these words could be up to interpretation, as was the case with torture. 

Fast forward to book 48 of the Digest, and we arrive at Ulpian’s opinions on the use of torture. The jurist notes that torture was customary within Roman law, but rather unreliable (48.18.1pr). 

Plaster copy of a panel from Trajan's Column. Dacian women inflict torture.
(Image Via Wikimedia)

There were a number of laws concerning the torture of slaves. Unlike citizens in the Republic and early empire, slaves had particularly vulnerable bodies that could be tortured under certain circumstances. Foreigners were also vulnerable, but as you moved up the social ladder to freedmen, protections of the body increased. For instance, a freedman could not be tortured when his patron was being tried for a capital crime (Ulp. Dig. In this section, caveats regarding the use of torture come up again:

nam plerique patientia sive duritia tormentorum ita tormenta contemnunt, ut exprimi eis veritas nullo modo possit: alii tanta sunt impatientia, ut quodvis mentiri quam pati tormenta velint: ita fit, ut etiam vario modo fateantur, ut non tantum se, verum etiam alios criminentur.

…for most persons, either through forbearance or through the harshness of the tortures, so hate the torture that the truth is in no way able be extracted from them. Others are so intolerant that they wish to lie rather than to endure the tortures, and thus it happens that they confess in a variant manner, so that they not only impeach themselves, but others as well (Ulp. Dig.

Clearly, there were many rules about when and how torture could be used, but there was originally a firm belief that citizens should be largely immune to it. The lex Porcia of the 190s BCE and later the lex Iulia de vi (c. 17 BCE) had a priori exempted citizens from torture (Robinson 2007:107). These corporal protections began to shift into the Antonine period. By the time of Marcus Aurelius, it appears that lower class citizens serving as witnesses could be tortured (CJ 9.41.11). Increasingly, only the upper orders of Roman society remained protected.

With the constitutio Antoniniana (212 CE), citizenship privileges were extended to most living within the empire, and thus the boundaries between citizen and foreigner eroded, to be replaced by status differentiations. Increasingly, only the very upper orders of Roman society remained protected, while humiliores became more available to torture tactics and corporal punishment such as flogging. Constantine expanded and in many ways even encouraged this growth in the use of torture and physical pain during the fourth century, which would permeate even the elite classes (e.g., decurions) into Late Antiquity. 

I do not have the space or the time to write as extensively as I would like on the subject of torture. I have written at length on the topic here, but I wanted to take a moment to think about the growth of such tactics in Roman antiquity and to ask whether we can learn from it. In my opinion, the use of torture and corporal punishment is insidious and spreads like a disease within any legal system. In short? As the CIA learned, torture is a largely ineffective approach to gathering information. Moreover, its use may often seem manageable and relegated to only the few within a society, but in reality, often spreads to the many.