Middle Ages and the Constitutio Criminalis Carolina

criminal liability.¹³² The discretionary power of the judges was reinforced by the above- mentioned idea of the primacy of the spirit of the law over its concrete wording.

There were some attempts to limit the wide authority of judges, establishing some legal restraints and procedural guarantees, but their discretion power remained considerably broad. The public criminal proceedings were grounded on the magistrate’s imperium that was only regulated by the law inside the city of Rome and only regarding private offences, remaining free and discretionary outside the capital.¹³³ Among the procedural guarantees established, it can be highlighted the judge’s obligation to provide, together with a judgment, the grounds of the decision and evidence of the condemned’ guilt.¹³⁴ As well, at least during certain periods, the use of analogy was prohibited in Rome.¹³⁵ In the same vein, the retroactive application of the laws was forbidden for some specific cases. Anyhow, even during the time the above- mentioned guarantees were effective in Rome, judicial discretion was not abolished.

Only a small part of criminal law was subject to these formalities. In fact, the judges could still punish actions not included as crimes in the law, doing so with no need to respect any legal proceeding, and discretionally determining the punishment.¹³⁶

development, the Italian theologian, echoing Aristotle, claimed for laws based on reason and aiming the common good. In the same vein, he considered that positive law was a reflection of divine law and natural law and therefore, unjust rules could not be considered valid law.¹³⁹ Aquinas, directly influenced by Aristotle’s ideas, also emphasized the importance of a general respect of legal statues, particularly regarding judges, that should act and sentence according, and within the limits of the law.¹⁴⁰ In this vein, Aquinas ideas about the limits of power significantly influenced political and legal doctrine and practice of his time.¹⁴¹

The rediscovery of the Justinian Code, combined with the existing canon laws, led to the creation of the medieval ius commune. This combination of the Corpus Iuris Civilis and the Corpus Iuris Canonici (canon law), governed legal education and legal practice in continental Europe from the 12^th century, and included some features of the principle of legality.

Canon law did not systematically distinguish sins and crimes before the 12^th century, but from this moment a conceptual distinction was established.¹⁴² All crimes continued to be considered sins, but not all sins constituted crimes. This conceptual distinction underpinned the emergence of canon criminal law. The distinction between criminal sins and all other immoralities was grounded on their sinfulness. This way, to be criminal a sin had to be serious, based on the traditional division between mortal and minor sins, and should be displayed in an external action.¹⁴³ While the non- criminal sins remained a matter of the sacrament of confession, specific courts were established to prosecute criminal sins.¹⁴⁴ The new canon criminal law established that no criminal sin could be prosecuted if it was previously prohibited. In fact, this norm

139 Ibid., 19.

140 Ibid.

141 Lamarca Pérez, ‘Formación Histórica y Significado Político de La Legalidad Penal’, 36. For further information on the Aquinas’ legal thought see, among others, Anthony J. Lisska, Aquinas’s Theory of Natural Law: An Analytic Reconstruction, Clarendon Paperbacks (Oxford:

Clarendon Press, 1996); Martin Rhonheimer, ‘St. Thomas Aquinas and the Idea of Limited Government’, The Journal of Markets & Morality 22, no. 2 (2019): 439–55.

142 Virpi Mäkinen and Heikki Pihlajamäki, ‘The Individualization of Crime in Medieval Canon Law’, Journal of the History of Ideas 65, no. 4 (2004): 531; Jana V. Beznosova, Anna N.

Kondratyeva, and Vera B. Romanovskaya, ‘Crime and Punishment, Sin and Retribution: From the History of Religious and Legal Traditions of East and West’, Mediterranean Journal of Social Sciences 6, no. 2 (2015): 663.

143 Beznosova, Kondratyeva, and Romanovskaya, ‘Crime and Punishment, Sin and Retribution:

From the History of Religious and Legal Traditions of East and West’, 664.

144 Mäkinen and Pihlajamäki, ‘The Individualization of Crime in Medieval Canon Law’, 531.

has been sometimes identified as the origin of the principle of legality.¹⁴⁵ However, this rule had no general application and the Church often applied an almost opposing principle: “no crime is to be left unpunished” (ne crimina remaneant impunita).¹⁴⁶

The doctrine about the limits of power, among with other important legality features, found practical implementation in Magna Cartas: legal documents recognizing rights to the estates of the realm that kings were bound to respect. In fact, some authors have identified in these medieval statues, and in criminal canon law, the roots of the principle of legality.¹⁴⁷

The Magna Carta Libertatum (“the Great Charter of the Liberties”, in medieval Latin) is generally identified as a landmark for the principle of legality.¹⁴⁸ In 1215 King John of England accepted this charter of rights, limiting his powers, to make peace with a group of rebel barons. It was intended to restore legality and prevent future abuses of the king, and with time it became a symbol of the rule of law against the tyranny of the State.¹⁴⁹

The renowned clause 39 of the Carta is clear evidence of the emergence of some legality elements: “No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”¹⁵⁰ In the same vein, clause 38 prevents royal bailiffs from bringing criminal actions against anyone unless the charges are supported by strong evidence.¹⁵¹

It is argued that the ius commune had a significant influence on the drafting of the Magna Carta, including the above-mentioned clauses 38 and 39. In fact, some legal requirements were at the time already comprised in canon law, and their presence in

145 Ibid.

146 Ibid.

147 Edmund Mezger, Derecho Penal: Libro de Estudio, vol. 1 (Buenos Aires: Librería El Foro, 2001), 63.

148 Cassese, International Criminal Law, 22; Ferrajoli, Derecho y Razón. Teoría Del Garantismo Penal, 383; Tamanaha, On the Rule of Law. History, Politics, Theory, 25; Lledó, ‘El Principio de Legalidad En El Derecho Penal Internacional’, 5; Lamarca Pérez, ‘Formación Histórica y Significado Político de La Legalidad Penal’, 48.

149 Richard Helmholz, ‘Magna Carta and the Ius Commune’, University of Chicago Law Review 66, no. 2 (March 1999): 299.

150 Magna Carta Libertatum, clause 39, available at:

https://www.occourts.org/directory/education/Magna_Carta_English_Translation.pdf.

151 Helmholz, ‘Magna Carta and the Ius Commune’, 337.

the Carta could not be explained only based on the common law.¹⁵² It is the case of the prohibition of punishments without a prior valid judgement in which the accused could enjoy certain prerogatives and procedural guarantees.¹⁵³

There is not a consensus among scholars about the importance and influence of the Magna Carta Libertatum on the actual principle of legality. However, it is generally recognised that it constitutes the origin of the common law concept of rule of law that, despite sharing some elements with the principle of legality, has as well important distinctive features.¹⁵⁴ Anyhow, some authors affirm that the aforementioned Magna Carta Article 39 was the origin of the modern principle of criminal legality. It is argued that the principle would have been brought by English migrants to the United States (US), then included in the 1774 Declaration of Rights of Philadelphia, and finally took up by the French Declaration of the Rights of Man and of the Citizen of 1789.¹⁵⁵ However, this theory is refuted by different arguments. It is claimed that during the same period, and even before the Magna Carta Libertatum was enacted, numerous documents of similar legal and political meaning already existed.¹⁵⁶ Among others, the 1037 Decree of the Holy Roman Emperor Conrad II, the 1188 Decreta of Leon,¹⁵⁷ or 1247 Huesca Compilation.¹⁵⁸

Anyhow, the direct connection between the Magna Carta and the principle of legality is enhanced by the fact that its Article 39 was explicitly cited in the first North American constitutions and declarations, and in the 1789 French Declaration of the Rights of Man and of Citizens. In fact, these codes understood Article 39 as comprising

152 Ibid.

153 Ibid.

154 As explained, with further references in Vicente Martínez, El Principio de Legalidad Penal, 16; Lledó, ‘El Principio de Legalidad En El Derecho Penal Internacional’, 6; Colin Turpin and Adam Tomkins, British Government and the Constitution, 6th ed. (Cambridge: Cambridge University Press, 2007).

155 Luis Jimenez de Asua, L’analogie en droit penal (RSC, 1949), 187; José Antón Oneca, Derecho penal, 2a ed. (Madrid, 1986), 109, as cited in Benessiano, ‘Légalité pénale et droits fondamentaux’, 53.

156 Lamarca Pérez, ‘Formación Histórica y Significado Político de La Legalidad Penal’, 48.

157 The UNESCO considers the 1188 Decreta of Leon as the oldest known written information regarding the European parliamentary system. UNESCO, International Memory of the World Register, The Decreta of León of 1188. The oldest documentary manifestation of the European parliamentary system (Spain). Collection ID 2012-02, available at:

https://en.unesco.org/memoryoftheworld/registry/251.

158 As analysed in Lamarca Pérez, ‘Formación Histórica y Significado Político de La Legalidad Penal’, 48.

the nullum crimen, nulla poena sine lege principle.¹⁵⁹ Nevertheless, it is argued that the original sense of the Article was very different, and that the impact of the document was relatively minor until the 17^th century when it acquired a glorified mischaracterization.¹⁶⁰ It is claimed that Magna Carta, as well as the others above- mentioned documents, reflected a conception of law and of the State political organization incompatible with the principle of legality. They were the result of feudal ideology, based on the fight for power between the existing estates of the realm that determined social hierarchy at the time. The nobility forced the kings to sign these document, whose objective was not to guarantee liberties but “libertas”, a set of rights and immunities of an estate.¹⁶¹

It is argued as well that Article 39 of the Magna Carta Libertatum only includes procedural safeguards.¹⁶² As well, as it will be further analysed, English criminal law is significantly based on customary and judge-made law, and the principle of legality under common law lacks many of the elements considered fundamental in civil law systems.¹⁶³ Moreover, the principle of legality can only exist in the framework of a State where the judiciary is subject to the laws and its functions are limited by their content.

When the Magna Carta was enacted these notions were inexistent, and judges held almost unrestricted powers.¹⁶⁴

Anyhow, in continental Europe during Middle Ages and until the 14^th century, judges founded as well their decisions on customs and held great discretionary faculties.

In France, for example, two sorts of punishments existed. The ordinary penalties, based on a law or a custom, and the extraordinary punishments, depending on the discretionary power of the judge, including death penalties.¹⁶⁵ Progressively, and in a not very methodical manner, customs started to be codified. The development of royal authority and the centralization of administrative power enhanced the codifications process and the publication of different criminal codes, even though they were mainly focused on procedural issues.¹⁶⁶

159 Mezger, Derecho Penal: Libro de Estudio, 1:63.

160 Tamanaha, On the Rule of Law. History, Politics, Theory, 25.

161 As analysed in Lamarca Pérez, ‘Formación Histórica y Significado Político de La Legalidad Penal’, 48.

162 Benessiano, ‘Légalité pénale et droits fondamentaux’, 53; Lamarca Pérez, ‘Formación Histórica y Significado Político de La Legalidad Penal’, 48.

163 Turpin and Tomkins, British Government and the Constitution, 99.

164 Benessiano, ‘Légalité pénale et droits fondamentaux’, 26.

165 Benessiano, 27.

166 Beccaria, An Essay on Crimes and Punishments, 106.

The Constitutio Criminalis Carolina was enacted in 1532, under the rule of Holy Roman Emperor Charles V. His Empire was composed by relatively self-ruling States enjoying certain degree of legislative autonomy. The Carolina was promulgated with the aim of unifying the diverse legal systems under the rule of the Empire, and to control the growing territorial powers.¹⁶⁷ It is considered the first complete, systematic, abstract and dogmatically structured criminal and procedural code, and it is often identified as well as an important antecedent of the principle of legality.¹⁶⁸ The Carolina was applied as supplementary law in all Imperial States, respecting the primacy of local law.¹⁶⁹ The only obligatory previsions were those concerning procedural guarantees and maximum punishments.¹⁷⁰ Even though regional laws continued to have general prevalence, they were modified to comply with the new imperial ius comune and a significant effort was made to transform customary criminal laws in written statutes.¹⁷¹

The importance of the Carolina lies in its public-law conception of punishments, moving away from the previous arbitrariness of sentences.¹⁷² In fact, it pursued granting a fast, safe and fair trial to the accused.¹⁷³ Among other significant advances, the code included a detailed definition of numerous criminal conducts. Despite some crimes and punishments were not clearly described or a remission was made to custom for its definition, in general the Carolina tried to precisely determine crime elements.¹⁷⁴ However, it should be noted that the use of analogy was permitted by Article 105.¹⁷⁵

Even if the Carolina and the other precedents explained in this chapter show a shared concern about legal certainty, and some elements reveal a growing adherence to important features of the principle of legality, they are far from a full acceptance of the principle.¹⁷⁶ As it has been analysed, the existence of legality elements in ancient legal

167 Hellmut Von Webber, ‘La “Constitutio Criminalis Carolina” de 1532’, Cuadernos de Política Criminal, no. 86 (2005): 129.

168 Bernd Marquardt, ‘El Primer código Penal Sistemático de la modernidad temprana Europea:

La Constitutio Criminalis Carolina de 1532’, Pensamiento Jurídico, no. 45 (2017): 15.

169 Von Webber, ‘La “Constitutio Criminalis Carolina” de 1532’, 129.

170 Marquardt, ‘El Primer código Penal Sistemático de la modernidad temprana Europea’, 35.

171 Ibid.

172 Lledó, ‘El Principio de Legalidad En El Derecho Penal Internacional’, 5.

173 Von Webber, ‘La “Constitutio Criminalis Carolina” de 1532’, 137.

174 Marquardt, ‘El Primer código Penal Sistemático de la modernidad temprana Europea’, 26.

175 As explained, with further references in Marquardt, 26.

176 Kress, ‘Nulla Poena Nullum Crimen Sine Lege’, 2010, para. 8.

systems is not questioned by the doctrine, but opinions are very diverse regarding the real meaning and influence of such precedents. However, the legal literature agrees to consider the enlightened ideas of the 18^th century as the origin of the political and philosophical rationales of the principle of legality.¹⁷⁷