| Popis: |
According to the modern criminal law doctrine, punishment is defined as a strong evil imposed by a sovereign for a committed guilt that is bound with an ethical reproach to the perpetrator. Strong actions imposed by a sovereign have been found since the early states in antiquity. Sin punishment and ethical blame, however, still had been unknown in the criminal law of those times. Then, in the heresy trials of the High and Late Middle Ages, self-understanding of criminal justice in practice was analogous to God’s last judgment, and criminal justice was strongly based on the sacrament of penance. Yet, not before the emergence of a peculiar literature on criminal law, the idea of punishment was pinpointed also in theory. Nevertheless, in canon law the notion of penalty still possessed a wide range, beginning from penalties in the modern sense up to so-called “penalties” that could be imposed without any guilt but for certain reasons, for example medical and restorative penalties. It only was in the sixteenth century, when Franciscan theologian Alfonso de Castro (1495–1558), one of the authors of the School of Salamanca, narrowed down the concept of penalty to its proper notion, defining it as a disease that is to be imposed because of an own past sin of the perpetrator. In parallel to this, he emphasized that by committing the criminal offence, the transgressor was not only bound to pay the penalty, but also “bound to blame”: he who broke a criminal law was burdened with sin. An ascertainment of the guilt-obligation of criminal law was a significant course setting for the ethical reproach which is addressed to the perpetrator by the modern criminal law. Criminal law did not only aspire to an objective compensation by punishment, but also to a subjective state of the perpetrator, comprehension of his guilt, which was intended to communicate with him as a moral person. The fact that an obligation in conscience was partially accepted even without a judicial conviction, clearly shows that the ethical stigma was implied not only by condemnation, but already by the criminal threat itself. In its time, this can be understood as a response to the stress of conscience by the Protestant theologians, as an attempt to lead the religious deviance of the heretics relying on individual conscience back to ecclesiastical obedience by the authority of the criminal law. |
