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

Moving from recent proposals, advanced especially in the US political and academic debate in the wake of the 9/11 terrorist attacks, to reintroduce torture as a legal tool to protect national security, the present article aims to analyze the normative developments regarding 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 application. 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 neglect 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 hypotheses 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 wider range of hypotheses.

Keywords
torture, public safety, crimen maiestatis, quaestio per tormenta