Sulla tortura nel processo penale tardo repubblicano. Una lettura di fonti ciceroniane

The importance of extra-juridical sources for getting to know the Roman legal experience by grasping its living reality is indisputable, equal to that of legal sources. This certainly also applies to criminal law which, moreover, it would be wrong to study separately from the procedure. Limited to the late Republican age, and selecting a significant procedural-criminal figure such as torture, a heinous instrument of evidence applicable to slaves, this work proposes a reading of selected Ciceronian sources (rhetorical treatises and prayers), in chronological order, that allow us to grasp aspects interesting on the dubious consideration of the efficacy of torture, on the meager regulation of the same, on the republican values involved. In particular, an entirely rhetorical ambiguity of torture emerges, dictated by often opportunistic reasons, which corresponds to its substantial ambiguity. That is: in the face of the moral reprobation for its ruthlessness and the skepticism of its probative value, we note the high frequency of its practice on servants, even in domestic contexts, as an indispensable tool, which reveals an attitude generally favorable to its use. Cicero who, in his youth, often uses rhetorical arguments against torture, at a more mature age and in a constantly changing political-constitutional context oriented towards an extension of torture to free men as well, shows a more open and intimate persuasion of his necessitas and effectiveness.