C O M P A R AT I V E S T U D Y
“Benignius leges interpretandae sunt”, thus suggesting an interpretation of
the law in a more benign way. Gaius, again a jurist, promoted the same
concept and deemed it applicable to any doubtful case, thus considering it
a general principle: “Semper in dubiis benigniora praeferenda sunt” (in case
of doubt the more lenient solution is to be preferred). And it is again Gaius
who, in another part of the Digest, stated: “Favourabiliores rei potius quam
actores habentur” (the condition of the defendant is to be favoured rather
than that of the plaintiff).9 Аnother segment of the Digest mentioned the
opinion on this topic of Ulpianus himself: “In ambiguiis rebus humaniorem
sententiam sequi oportet” (in case of ambiguity, it is preferable to go for
the more lenient solution). Ulpius Marcellus, a jurist contemporary with
Ulpianus, in a segment reported in the Digest, asserted, more or less, the
same: “In re dubia benigniorem interpretationem sequi, non minus justus
sed est quam tutius” (It is not only fairer, but it is also safer, in case of
doubt, to choose the more lenient solution).10
Such line of thought continued also throughout the III century A.D., an
age of crises. The jurist Aurelius Hermogeniano, who was active under
the emperor Diocletian, wrote: “Interpretatione legum poenae molliendae
sunt potius quam asperandae”, suggesting that the interpretation of laws
and punishments must make them softer instead of making them harder.11
Furthermore, the Latin historian Ammianus reports on an anecdote which
illustrates how deeply the principle was rooted in Roman law. Namely,
Numerius, the governor of Narbonensis, a province of the vast Roman
Empire, was on trial before the emperor and, contrary to the frequent
practice in criminal cases, the trial was public. Numerius defended
himself by denying his guilt and since there was not sufficient evidence
against him, his adversary, Delphidius, realizing that the failure of the
accusation was inevitable, could not restrain himself from exclaiming:
“Oh, illustrious Cæsar! If it is sufficient to deny, what hereafter will become
of the guilty?” The answer of Emperor Julian was equally famous: “If it
suffices to accuse, what will become of the innocent?”12
Bissacco Cristina, Il canone In dubio pro reo: tra concezione classica e moderna della prova, Padova,
2008, p. 12 citing Celsus, 29 digestorum, D. 1.3.18.
10
Paolo Moro, Il diritto come Processo, 2012, p. 204 citing Dig., 34,5,10,1, Ulpianus. See also Sič, M.,
Trajne vrednosti Rimskog prava (Secter values of Roman Law), Zbornik radova Pravnog fakulteta
u Splitu, year 43, no. 3-4/2006, p. 391; Bayer, V, Jugoslovensko krivicno procesno pravo (Yugoslavian
criminal procedural law), Second eddition, Pravo o cinjenicama i njihovim utvrdzivanju u krivicnom
postupku (Law on facst and its establishment in the criminal procedure), Second edition, Informer
Zagreb 1978, p.37.
11
Bissacco Cristina, Il canone In dubio pro reo: tra concezione classica e moderna della prova, Padova,
2008, p. 12 citing Hermogenianus, 1 ad epitomarum, D. 48.19.42.
12
Ammianus Marcellinus, Rerum Gestarum, L. XVIII, c. 1.
9
17
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