Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

2014

Abstract

Intentionality and proportionality enter the jurisprudence dealing with rights of defense at the end of the third century of the common era. A rescript of the emperors Diocletian and Maximian to a certain Theodorus in 290 A.D. resolved a legal issue that had arisen from a court case. The question sent to the imperial court must have been: what kind of a defense a person can use if a robber attempts to take his property away. The imperial court’s response coined a new term, “moderamen inculpatae tutelae” that had never been used before, at least not in the sources that are still preserved:

A person lawfully in possession has the right (recte) to use a controlled amount of blameless force (moderamen inculpatae tutelae) to repel any violence exerted for the purpose of depriving him of possession, if he holds it under a title that is not defective.

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