Historical references regarding the penal repression

• Author: Gheorghe Diaconu
• Position: Judge; Lecturer Ph.D. University of Pitesti, Faculty of Law and Admnistrative Sciences, Law Department
• Pages: 130-136

HISTORICAL REFERENCES REGARDING THE PENAL REPRESSION

Gheorghe Diaconu

Abstract

In the course of time, the repressive r eaction ha d different forms; it began with th e unlimited revenge

which was out of any regulation and then it got to the r eaction which is legally regu lated a nd it is strictly

controlled by the state a uthority. The sta ges of the repressive reaction represent the proves of the permanent

effort that has been made in order to keep under co ntrol the beha viors that are contrary to the social order by

sanctioning the most serious forms of them and they also repr esent the pr oves of the continuous concern

regar ding the efforts that ha ve been developed in order to humanize the punishment.

Keywords: punishment; revenge; r epression; rea ction; talion.

Introduction

The penal law history attests not only the permanent effort made to keep under control the behaviors

that a re contra ry to the social or der by sanctioning the most serious forms of these behaviors, but also it attests

the concern regarding the continuous effort made in or der to humanize the punishment. In this r espect the

proves are repr esented by the very stages of the repressive reaction. In the course of time, the repressive

reaction had different forms. Thus, it has started with the unlimited revenge based on the instinctive rea ction that

was out of any legal regula tion and then it got to the rea ction that is legally regula ted and it is strictly controlled

by the state author ity (the nationalization of the rep ression).

A. The period without juridical regulation

1. Any human being puts up resistance and reacts when she f eels that she is threatened with a danger.

Naturally, the victi m’s repressive rea ction is only dictated by the instinct of self -preservation, it has a defensive

character so that she tries to realize a defense which must last as long as the jeopardy that t hreatens her lasts

1.

But, in comparison with other beings, the man, even the primitive one is endowed with superior spiritual

aptitudes and he has a more complex attitude when he has to cope with actions directed against him. Although

the human being as any other beings reacts in a defensive way when he is in front of the d anger, he still keeps

the reminiscence of t he danger or of the injury that he suffered, he is afraid of the fact that the aggressive action

could repeat and at the same time he conceives feelings of hate and perceives any aggressor as an enemy. The

fear and the hate push the man’s reaction beyond the limits of an immediate defense and they add to the

defensive reaction the repressive one; in other words, be sides the defensive attitude it appears the victim’s

repressing attitude2.

2. The victim’s unlimited revenge against t he one who caused her an injury was t he first form of the

repressive reaction during the primitive Age.

Whenever the victim and the aggressor belonged to different social groups (for instance, two families,

clans, tribes) the revenge took the collective form and it wasn’t submitted to any regulation. The only restrictions

that existed were those that naturally resulted from the physical possibilities, from the skill (abilities) and the

courage of each individual or of each group of individuals.

The full lack of regulation has given to this revenge the name of unlimited or borderless revenge and the

period within it functioned as an unique form of the repressive reaction it was given the name of period without

juridical regulation (non-juridical period) because no legal rule regarding the mode in which the members of the

group were to revenge it was imposed to them3.

Vindicta privata, a basic reaction, a brutal and an unlimited one it appears as the first form of

sanctioning the inconvenient behavior of the individual or of the social group.

3. In most cases, the one who suffered an injury couldn’t revenge by himself, thus he asked for the help

of his near relatives and the insignificant conflicts degenerat ed into collective and repeated attacks. Owing to this

fact, each family or clan or tribe etc. was jeopardized because of the important losses caused by the killing or b y

the crippling of the group members, facts that weakened the group’s power of work and defense. All these could

finally lead to a possible conquering of the group made by a stronger and more solidary collectivity.

 Judge; Lecturer Ph.D. University of Piteşti, Faculty of Law and Admnistrative Sciences, Law Department, gheorghe.diaconu@just.ro

1 G. Stefani, G. Levasseur, Droit penal general, the 6th edition, Dalloz, Paris, 1972, p. 12.

2 Vintil Dongoroz, Drept penal, Bucharest, 1939, p. 36.

3 Ioan Ceterchi, Vladimir Hanga and collaborators, Istoria dreptului românesc, volume I, Academia Publishing House, Bucharest, 1980, p.

431.