Historical and Contemporary Issues of Democracy, Person and Human Rights

Table Of Contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• Chapter I. Democracy in Ancient Rome
• The missing pieces. Elements of control in the puzzle of the Roman Republic (Anna Tarwacka)
• Bibliography
• Disinformation and Democracy in Roman Law: Candidates and Election Campaigns (José Luis Zamora Manzano)
• 1. Foreword
• 2. Roman election campaigning: seeking strategies to secure the vote
• 3. Tips for a campaign on Commentariolum petitinonis
• 4. Election propaganda in Pompeii: some notes
• 5. Conclusions and discussion
• Bibliography
• Evidence from the Libri Augurum on certain juridical-religious aspects of the Dictator (Rosanna Ortu)
• 1. The importance of the priestly documents for the reconstruction of archaic Roman juridical-religious institutions: the value of the ‘libri augurum’
• 2. Fragments from the Libri Augurum about dictator: Cicero and Livy
• 2.1. On the denomination of ‘dictator’: Cic. ‘rep.’ 1.40.63
• 2.2. On the competence of the appointment of the dictator: Liv. 4. 31. 4
• 2.3. On the ‘dictio dictatoris’: Liv. 8.23.15
• 2.4. On the place of ‘dictio’: Liv. 27.5.15
• 3. Concluding remarks
• Bibliography
• The auspices in the activities of plebeian tribunes (Elżbieta Loska)
• Bibliography
• Lex est quod populus iubet atque constituit (Gai. 1.3): law-making functions of popular assemblies as the factor of democratisation in the Roman republican constitution (Anna Karabowicz)
• 1. Not an easy definition of democracy
• 2. Roman democracy – truth or myth
• 3. Dēmos
• 4. Kratos
• 5. The sovereignty of the Populus Romanus
• Bibliography
• Sources
• Chapter II. Contemporary issues of democracy
• Constitutional democracy. The case of the Polish-Lithuanian Commonwealth in the 16th-17th Centuries (Dariusz Makiłła)
• Bibliography
• Remarks on Shaw vs. DPP. (1962) based on Herbert Hart’s “Law, liberty and morality”. What does it tell us about legal activism? (Artur Kotowski)
• 1. Introduction
• 2. Ladies Directory case – basic information
• 3. Judical activism - evaluation
• 4. Legal Enforcement of Morality
• Bibliography
• Participatory democracy and ius impositionis (Salvatore Antonello Parente)
• 1. Introduction
• 2. The legal reserve as an expression of participatory democracy in tax matters
• 3. The growing pre-eminence of the technocratic profile over the democratic participation of the taxpayer. The functional distinction between democratic principle and technical inspiration in the formulation of tax rule
• 4. The content of the legal reserve in tax matters and the role of sub-legislative sources
• 5. The brocardi “nullum tributum sine lege” and “no taxation without representation”. The “brakes and counterweights” system
• 6. Conclusions
• Bibliography
• New wave of deliberative democracy – international discourse (Edyta Sokalska)
• 1. Introduction
• 2. The good polity and mending democracy in the 1980s
• 3. Theoretical and practical research on deliberative democracy: four generations
• 4. Concluding remarks
• Bibliography
• Engaging young people in democracy. General remarks and the Polish perspective (Katarzyna Kubuj)
• Bibliography
• Educating for human rights: Olympe de Gouges a model of courage and justice (Rosa Indellicato)
• 1. Human rights: the path to a just society
• 2. Olympe de Gouges: example of education for democracy
• Bibliography
• Constitutional court of a democratic legal state as an institution of dialogue at the intersection of political and legal traditions (Juliusz Mroziński)
• 1. Introduction
• 2. Composition of the constitutional court as a determinant of its legal and political role
• 3. Conclusions
• Bibliography
• World paradigms and the future – quo vadis humanitas? (Agnieszka Wójcik-Czerniawska, Maria Jasińska)
• 1. Introduction
• 2. Contribution to the Field
• 3. Research Questions
• 4. Methodology
• 5. The Rise of Cryptocurrencies
• 6. Advantages and Disadvantages of Cryptocurrencies
• 7. Effect on Central Banks and State Establishments
• 8. Socio-Economic and Political Implications
• 9. Benefits of Digital Currency
• 10. Disadvantages of Digital Currency
• 11. Conclusion
• Bibliography
• Chapter III. Legal situation of a person from ancient Rome to modern times
• Women, law, peace and freedom (Amparo Montañana Casaní)
• 1. Conclusion
• Bibliography
• The principle of gender equality in european thought and its antecedents in Roman law (Belén Fernández Vizcaíno)
• 1. The principle of gender equality in European thought
• 2. Women in Rome: their evolution in relation to the principle of equal treatment
• 3. Background to the principle of equal treatment in Roman inheritance
• 3.1. The ius adcrescendi in partem of the preterited daughter
• 3.2. Prohibition of succession agreements against the inheritance rights of daughters
• Bibliography
• Honour and good name as an element of the right to privacy. Contemporary regulations and their Roman origins (Sławomir Kursa)
• 1. Contemporary constitutional regulations
• 2. Protection of honour and good name in Polish law
• 3. The development of the protection of honour and good reputation in Roman law
• 4. Conclusions
• Bibliography
• The right to property and the right to restrict it in Roman law (Renata Kamińska)
• Bibliography
• A will – a source of knowledge about the hopes and needs of the dying (Ewelina Mikulska)
• 1. Introduction
• 2. What is a Will?
• 3. Wills in Antiquity
• 4. The Origins of Polish Wills
• 5. Wills in Medieval Europe
• 6. The Specific Functions of Wills
• 7. Conclusions
• Bibliography
• Legal protection of the creditor in European Order for Payment Procedure – analysis and commentary on selected provisions of EU law (Małgorzata Eysymontt)
• 1. Introduction
• 2. History of the development of EU law related to cross-border claims
• 3. Legal remedies in cross-border civil cases under EU law - current state of the law
• 4. Regulation creating a European order for payment procedure as a guarantee of reinforced creditor protection - general provisions
• 5. Regulation creating a European order for payment procedure as a guarantee of enhanced creditor protection under EU and Polish procedural law - specific provisions
• 6. Conclusion
• Bibliography
• Gladiators – champions – duellists. A contribution to the institution of duel (Łukasz Majewski)
• 1. Introduction and definitions
• 2. Duelling in Antiquity
• 3. Medieval duels
• 4. Modern duelling
• Bibliography
• Chapter IV. Human rights in a democratic state
• Romanization, globalization and virtual reality (Bronisław Sitek)
• 1. Introductory remarks
• 2. Romanitas
• 3. Globalization
• 4. Virtual world or virtual reality - virtual reality (VR)
• 5. Final conclusions
• Bibliography
• Internet literature
• Democracy in crisis and its effects on the enjoyment of human rights (Agata Hauser)
• 1. Introduction and conceptual framework
• 2. Analysis of the recommendations
• 3. Conclusions
• Bibliography
• UPR summaries
• Concluding observations
• A contemporary perspective on the functions of punishment in Roman criminal law (Wojciech J. Kosior)
• 1. Introduction
• 2. The System of Punishment in Roman Law
• 2.1. Forms of Punishment in Roman Law
• 2.2. Functions of Punishment in Roman Law
• 3. The Subsequent Development of the Functions of Punishment
• 3.1. Functions of Punishment in Medieval Europe
• 3.2. Functions of Punishment in the Enlightenment Era
• 3.3. The Contemporary Functions of Punishment
• 4. Conclusions
• Bibliography
• Dignity of prisoners – why we need to protect it? (Ewa Dawidziuk)
• 1. Introduction
• 2. International standards
• 3. Specific issues connected to the protection of dignity within prisons
• 3.1. Penitentiary staff
• 3.2. Transgender prisoners
• 3.3. Living conditions
• 3.4. Solitary confinement
• 3.5. Intimacy
• 3.6. Body searches
• 3.7. Death in prison
• 3.8. Direct coercive measures
• 3.9. Food within prison
• 3.10. Health care
• 4. Conclusions
• Bibliography
• The right to a court (the right to a fair trial) in relation to the selected institutions in civil proceedings, taking into consideration the historical context of their establishment (Natalia Piotrowska)
• 1. Introduction
• 2. The right to a court (the right to a fair trial)
• 3. The right to a court (the right to a fair trial) in relation to: - the manifestly unfounded action, - the remote hearings (meetings), - judgment in the absence of the defendant / default judgment – introduction
• 4. The manifestly unfounded action
• 5. The remote hearings (meetings)
• 6. The default judgment / judgment in the absence of the defendant
• 7. Summary
• Bibliography
• Is the right to labour strike a fundamental human right? (Ewa Pietrzak, Dominika Kuna)
• 1. Introduction
• 2. The concept of human rights
• 3. The right to strike – general remarks and definition
• 4. The right to strike in international law
• 5. The right to strike in Polish law
• 6. Right to strike as a fundamental human right – conclusions
• Bibliography
• Acts of law
• Case law
• A person in a specific social group, geographical location and country of origin in the face of his democratic freedoms and the right to self-determination (Marina Khachatryan-Zagórska)
• 1. Introduction
• 2. Building a society based on autonomy - psychological perspectives of democratic freedom and the right to self-determination
• 2.1. The Impact of Culture on Democracy and Human Rights - A Case Study of Different Geographical Regions
• 2.2. Cultural Differences and Their Impact on Democracy and Human Rights - An Overview of Different Geographical Regions
• 3. The importance of intercultural dialogue and respect for diversity
• 4. Analysis of the process of cultural assimilation of Women of Armenian Culture towards the country of residence and the power of identification with the canons of the culture of origin
• 5. Summary
• Bibliography
• Chapter V. Access to information in a democratic state
• The relevance of public information access in democracy - the Spanish law perspective (María Lidón Lara Ortiz)
• 1. Administrative transparency as an indicative of good democratic functioning: active transparency and access to public information
• 2. The exercise of the right to access the public information: legal nature
• 3. Controversial issues about the exercise of the right to access in Spanish law due to the duality of access as exercised by a citizen or a person interested in the procedure
• 4. Conclusions
• Bibliography
• ‘Environmental democracy’ and the protection of natural elements - legal instruments and ecological considerations (Elżbieta Zębek)
• 1. Introduction
• 2. Public participation and access to environmental information
• 3. Public participation in the environmental impact assessment
• 4. Conclusions
• Bibliography
• Legal acts
• Fighting harmful content - censorship in the name of cybersecurity (Chałubińska-Jentkiewicz Katarzyna)
• 1. Security - a rationale for restrictions on freedom of speech
• 2. Digital media as an area of regulation
• 3. Harmful content - a necessary redefinition
• 4. Liability for illegal and harmful content
• 5. Regulatory future - summary
• Bibliography
• Digital identity and the right to privacy and data protection (Monika Nowikowska)
• 1. General comments
• 2. Digital identity vs. personal data
• 3. Digital identity and the right to privacy
• 4. Final conclusions
• Bibliography
• Legal acts
• List of online sources
• The role of legal entity identification in modern governance and data management (Katarzyna B. Wojtkiewicz)
• 1. Introduction
• 2. The Role of Data in Contemporary Society
• 3. Concept of “Legal Norm as an Achievement of Data Governance”
• 4. The Role of Entity Identification in Modern Governance
• 4.1. The Legal Entity Identifier (LEI)
• 4.2. LEI in Regulations
• 4.3. LEI in Legal Taxonomies
• 5. Conclusions and Postulates de lege ferenda
• Bibliography
• Abuse of access to public information in a democratic state of law (Maciej Pleban)
• 1. General remarks
• 2. Objective and subjective scope of public information
• 3. The concept of abuse of the right to public information
• 4. Examples of abusing the right of access to public information
• 5. Ways of combat with the abuse of the right to public information
• 6. Concluding remarks
• Bibliography
• Acts of law
• Case Law

Ewa Dawidziuk / Anna Tarwacka / Sławomir Kursa (eds.)

Historical and Contemporary Issues of Democracy, Person and Human Rights

Berlin · Bruxelles · Chennai · Lausanne · New York · Oxford

Bibliographic Information published by the Deutsche Nationalbibliothek

The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available online at http://dnb.d-nb.de.

Library of Congress Cataloging-in-Publication Data

Names: Dawidziuk, Ewa, editor. | Kursa, Slawomir editor. | Tarwacka, Anna editor. | Lazaro Guillamon, Carmen editor. | Montanana Casani, Amparo editor.

Title: Historical and contemporary issues of democracy, person, and human rights / editors, Ewa Dawidziuk, Slawomir Kursa, Anna Tarwacka, Carmen Lazaro Guillamon, Amparo Montanana Casani.

Description: New York : Peter Lang, 2025. | Series: Ius, lex et res publica, 2191-3250 ; 41 | Includes bibliographical references.

Identifiers: LCCN 2025020141 (print) | LCCN 2025020142 (ebook) | ISBN 9783631928349 (hardback) | ISBN 9783631928356 (pdf) | ISBN 9783631940631 (epub)

Subjects: LCSH: Rule of law. | Civil rights. | Persons (Law) | Democracy. | Freedom of information.

Classification: LCC K3171 .H57 2025 (print) | LCC K3171 (ebook) | DDC 340/.11--dc23/eng/20250424

LC record available at https://lccn.loc.gov/2025020141

LC ebook record available at https://lccn.loc.gov/2025020142

Cover illustration: Courtesy of Benjamin Ben Chaim.

This publication was financially supported by the Faculty of Law of the SWPS University as well as by the Cardinal Stefan Wyszynski University in Warsaw.

ISSN 2191-3250

ISBN 978-3-631-92834-9 (Print)

E-ISBN 978-3-631-92835-6 (E-PDF)

E-ISBN 978-3-631-94063-1 (E-PUB)

DOI 10.3726/b23045

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Published by Peter Lang GmbH, Berlin (Germany)

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Table of Contents

Chapter I. Democracy in Ancient Rome

Anna Tarwacka

The missing pieces. Elements of control in the puzzle of the Roman Republic

José Luis Zamora Manzano

Disinformation and Democracy in Roman Law: Candidates and Election Campaigns

Rosanna Ortu

Evidence from the Libri Augurum on certain juridical-religious aspects of the Dictator

Elżbieta Loska

The auspices in the activities of plebeian tribunes

Anna Karabowicz

Lex est quod populus iubet atque constituit (Gai. 1.3): law-making functions of popular assemblies as the factor of democratisation in the Roman republican constitution

Chapter II. Contemporary issues of democracy

Dariusz Makiłła

Constitutional democracy. The case of the Polish-Lithuanian Commonwealth in the 16th-17th Centuries

Artur Kotowski

Remarks on Shaw vs. DPP. (1962) based on Herbert Hart’s “Law, liberty and morality”. What does it tell us about legal activism?

Salvatore Antonello Parente

Participatory democracy and ius impositionis

Edyta Sokalska

New wave of deliberative democracy – international discourse

Katarzyna Kubuj

Engaging young people in democracy. General remarks and the Polish perspective

Rosa Indellicato

Educating for human rights: Olympe de Gouges a model of courage and justice

Juliusz Mroziński

Constitutional court of a democratic legal state as an institution of dialogue at the intersection of political and legal traditions

Agnieszka Wójcik-Czerniawska, Maria Jasińska

World paradigms and the future – quo vadis humanitas?

Chapter III. Legal situation of a person from ancient Rome to modern times

Amparo Montañana Casaní

Women, law, peace and freedom

Belén Fernández Vizcaíno

The principle of gender equality in european thought and its antecedents in Roman law

Sławomir Kursa

Honour and good name as an element of the right to privacy. Contemporary regulations and their Roman origins

Renata Kamińska

The right to property and the right to restrict it in Roman law

Ewelina Mikulska

A will – a source of knowledge about the hopes and needs of the dying

Małgorzata Eysymontt

Legal protection of the creditor in European Order for Payment Procedure – analysis and commentary on selected provisions of EU law

Łukasz Majewski

Gladiators – champions – duellists. A contribution to the institution of duel

Chapter IV. Human rights in a democratic state

Bronisław Sitek

Romanization, globalization and virtual reality

Agata Hauser

Democracy in crisis and its effects on the enjoyment of human rights

Wojciech J. Kosior

A contemporary perspective on the functions of punishment in Roman criminal law

Ewa Dawidziuk

Dignity of prisoners – why we need to protect it?

Natalia Piotrowska

The right to a court (the right to a fair trial) in relation to the selected institutions in civil proceedings, taking into consideration the historical context of their establishment

Ewa Pietrzak, Dominika Kuna

Is the right to labour strike a fundamental human right?

Marina Khachatryan-Zagórska

A person in a specific social group, geographical location and country of origin in the face of his democratic freedoms and the right to self-determination

Chapter V. Access to information in a democratic state

María Lidón Lara Ortiz

The relevance of public information access in democracy - the Spanish law perspective

Elżbieta Zębek

‘Environmental democracy’ and the protection of natural elements - legal instruments and ecological considerations

Chałubińska-Jentkiewicz Katarzyna

Fighting harmful content - censorship in the name of cybersecurity

Monika Nowikowska

Digital identity and the right to privacy and data protection

Katarzyna B. Wojtkiewicz

The role of legal entity identification in modern governance and data management

Maciej Pleban

Abuse of access to public information in a democratic state of law

Anna Tarwacka¹

The missing pieces. Elements of control in the puzzle of the Roman Republic*

Abstract: This article deals with the policy of the Roman Republic, and in particular with the elements of control that were supposed to guarantee stability. One such element was the office of the plebeian tribune, whose powers were of a blocking nature: he had veto power over the decisions of other officials, the popular assemblies and the senate. The office of censor was the second element of control. These magistrates could influence the composition of the assemblies, the senate and the army, as well as the political careers of individuals. The most important instrument of control was the censorial mark, which was a means of social degradation and loss of good name.

Keywords: Roman Republic, censorship, nota censoria, censorial mark, plebeian tribune

The Republican system in ancient Rome was an extremely precise mechanism. Elements worked perfectly together but could also inhibit each other. Its analysis is not an easy task. We owe the classical theory of political systems to Aristotle,² who in the Politics divided them according to two criteria: the number of people in power (one person, a small group or a large group) and in whose interest power was exercised. In the latter case, he distinguished between correct and deviant constitutions. Among the former, he listed monarchy (rule by an individual), aristocracy (rule by a minority) and polity (rule by the majority), while the latter included tyranny, oligarchy and democracy respectively. The difference between the two was to be determined by whose interest the power was exercised: if it was in the interest of the general public, it was a correct constitution, and if it was in the interest of the ruler, it was a deviant one. According to this classification, the system of Republican Rome is of a mixed nature, somewhat similar to that of Sparta described by Aristotle.

The analysis of the Republican system was carried out by Polybius, the historian and author of the Histories, who was a hostage in Rome and knew it from the inside. At the same time, as an outsider, he had an interesting point of view, because the way the Republic worked did not seem natural to him, and this makes his analysis an invaluable source of knowledge for us.

According to Polybius,³ the entire Republican system consisted of three elements: the monarchical, represented by the power of the consuls; the oligarchical, represented by the power of the senate; and the democratic, represented by the power of the people. These elements worked together supporting, controlling and inhibiting each other, ensuring that none could take the upper hand over the others. It was the balance that was to constitute the superiority of this form of system over the others.

In describing the tasks of the consuls, Polybius made a clear distinction between their powers in the city and those in warfare.⁴ In Rome, almost all the officials were subordinate to the consuls; only the plebeian tribunes could veto their decisions. In the senate, it was the consuls who brought important matters for debate and then dealt with the execution of resolutions. The same was true in the assemblies. In wartime, on the other hand, the consuls were in charge of recruiting the army, and could demand troops from the allies. They were allowed to apply all kinds of punishments to soldiers, without any possibility of appeal, i.e. provocatio. The claim by Polybius that a consul could take any sums from the treasury through a quaestor is highly questionable in interpretation. Polybius seems to have heard of such a case during the consulship of Scipio Africanus and regarded it as a rule.⁵

In discussing the powers of the senate, Polybius mentioned the management of the state treasury and the direction of foreign policy, in particular the reception and sending of envoys. This last function caused many foreigners to regard Rome as an aristocratic state, as they had to deal only with the senate and its legates. It is worth mentioning here a story from 168 BC, whose protagonist was C. Popillius Laenas sent to Egypt as legate on behalf of the senate.⁶ The reason for his mission was the invasion of the Ptolemaic kingdom by Antiochus IV Epiphanes, ruler of the Seleucid empire. This episode was described by Valerius Maximus,⁷ a fan of anecdotes. Popillius, having met Antiochus, did not accept his outstretched hand, but handed him a tablet bearing a resolution of the senate ordering his army to withdraw from Egypt. When the king expressed his wish to consult his friends, Popillius drew a circle on the ground around Antiochus and said that he would only be allowed to leave it when he had given his answer to the senate. Only when Antiochus declared that he would withdraw from Egypt did Popillius shake his hand as an ally of the Roman people. According to Valerius Maximus, the legate in this case epitomised the curia of the senate itself. He was dignified, resolute and - even though he was talking to the king - put himself in the position of a sovereign who could not tolerate opposition. This anecdote perfectly illustrates the tendency of foreigners to view Rome through the prism of the power of the senate and its legates.

The people, according to Polybius’ account, decided rewards and punishments: they could pass death sentences, try former officials and elect to office. Besides, it was the assemblies that passed laws, decided on war and peace and ratified alliances. In conclusion, the author stated that the success of the Republic as a political form was determined primarily by the balance between its components.

Analysing the rules of the Roman Republic is not an easy research problem. The formation of these rules took place in the first decades of the Republic, after the expulsion of the last of the kings, Tarquin the Proud. This period was also the time of the plebeians’ struggle for equality with the patricians in political rights, which had a great impact on the future shape of the system. It was eventually established, as Polybius wrote, that power in Rome was held by officials, the senate and the popular assemblies. Rules related to running for office, or cursus honorum - the path of honours - were regulated in detail. These rules, initially customary and then subject to statutory regulation with the enactment of the lex Villia, dealt with the order in which to apply for offices and the age required to hold them. The principles of holding office, such as collegiality, tenure, incompatibility and gratuitousness, were also observed, and restrictions were placed on the possibility of being re-elected to the same office (iteratio) and the obligation to take a break of at least one year after the expiry of the term before running again (vacatio). The senate was composed of former officials appointed by the censors entitled to perform the lectio senatus by virtue of lex Ovinia. The assemblies (comitia centuriata, tributa and curiata) were open to all citizens. The right to convene them was vested in officials endowed with the ius agendi cum populo. All three components of government had a great influence on each other.⁸ Thus, for example: the officials were elected by the assemblies, but they in turn had the exclusive right to convene them and put legislation before them.

The picture drawn by Polybius thus consists of three essential elements which together formed the Republican system: the consuls and other magistrates, the senate and the assemblies. Power was concentrated in these three centres, which remained interdependent. This arrangement could be likened to a system of checks and balances.

However, two key elements still do not seem to have been sufficiently emphasised in Polybius’ account. The period of the formation of the Republican system was determined by the struggle of the plebeians to gain political rights. The plebeians succeeded early on (494 BC after the first secession of the plebs) in establishing the office of plebeian tribune,⁹ and in time also plebeian assemblies, whose powers included the passing of plebiscites. The tribunes’ task was initially mainly to protect the interests of the plebeians against the abuses of patrician magistrates, but later to protect the interests of all citizens. The tribunes were given quite strong instruments for this purpose: they were inviolable (sacrosanctitas) and had the right to block (ius intercedendi) the decisions of other state bodies: magistrates except the dictator, popular assemblies, and the senate. In addition to these powers of a negative nature, they also had the ability to convene plebeian assemblies and to bring plebiscite motions,¹⁰ which gave them the ability to create laws. Their functions were therefore of a controlling nature, but not only. A large percentage of late-Republican legislation consisted precisely of plebiscites, which leads us to believe that the role of the tribunes was increasingly important systemically.

The other piece of this puzzle overlooked by Polybius was the office of censor.¹¹ This magistracy was also created in the course of the struggle of orders. The plebeians, who were initially marginalised, were already so close to gaining access to the office of consul that the patricians decided to salvage what they could. The tactic they used was to set up new offices, taking over some of the powers of the highest magistracy. The task of the censors was to take a census. According to Livy’s account,¹² their role was initially rather insignificant; only later, with the acquisition of the power to control citizens’ observance of ancestral customs (mores maiorum) and to punish with a censorial mark, did they acquire a higher rank. This opinion, however, is not convincing. The conduct of the census was also associated with the performance of a purification of the state - a sacred rite called lustrum condere, which ensured the Republic’s prosperity for the next five years.¹³ It was this honour that the patricians were by no means willing to pass on. It can therefore be thought that censorship was a dignity of great importance from its inception. The competence of the censors also points to their colossal importance for the shape of the polity. Census and the censorial mark were tools for controlling the social structure of the state. Officials could move an individual up the hierarchy, thus influencing, for example, the composition of the army, the assemblies, the senate or an individual’s political career.

At the time of the census, citizens were enlisted according to property classes, centuries and tribus.¹⁴ The influence of the censors on the composition of the two types of popular assemblies, the comitia centuriata and the comitia tributa, as well as the plebeian assemblies, the concilia plebis, which were also tributa,¹⁵ was therefore undeniable. The censors reviewed the equestrian centuries as well – recognitio equitum. In addition, since the enactment of the plebiscitum Ovinium, their duties also included compiling the list of senators - lectio senatus.¹⁶

Alongside these powers, a complementary competence of the censors developed, called regimen morum, i.e. the supervision of morality to as mores maiorum. The term mores maiorum basically means “customs of the ancestors”, but a simple translation does not convey the depth of its meaning: it is not just about moral norms, but rather a whole complex of rules regulating the functioning of the state in its various aspects. Particular attention should be paid here to the fact that the Republican system was not, as a rule, regulated in written law.¹⁷ Certain institutions were indeed specified in statutes over time, but many others remained in the realm of mores. For example, the cursus honorum was initially customary and was later consolidated in the lex Villia of 180 BC, but the rules for the conduct of the senate were not regulated by statute. Many Republican jurists produced works on the system, explaining these unwritten rules. We can mention, for example, Gracchanus’ treatise De potestatibus or Tuditanus’ work Libri magistratuum. Varro’s Antiquitates rerum humanarum et divinarum also contained a wealth of information.

One can therefore conclude that the sphere of competence of the censors covered not only the private life of citizens, but also the political life of the state. Executing the regimen morum, these officials could punish a citizen with a censorial mark, degrading him socially and depriving him of his good name. The mark could result in the removal of a senator from the senate or the omission of a candidate meeting the criteria of the lex Ovinia, the removal of an equestrian from the horsemen’s century, as well as the transfer to the aerarii, the lowest census group, and a change of tribus, which entailed a restriction of political rights.¹⁸

The surviving source texts make it possible to see the control activities of the censors in several spheres of political life: abuses of officials, irregularities in command posts in the army, dishonouring of office through improper behaviour.¹⁹

Abuses of office generally had to do with exceeding powers or failing to respect the limits of authority. A case in point is the violation of the principle of collegiality of offices by failing to take into account the intercessio of a colleague. The following case (based on fact) was to be argued by the young Marcus Aurelius at the request of his teacher Fronto: the tribune Marcus Lucilius imprisoned a Roman citizen against the opposition of the other tribunes, for which he was punished by the censors.²⁰ Lucilius exercised his ius prendendi, but in view of the intercessio he should have released the citizen. The intervention of the other tribunes can be seen as a grant of auxilium to the citizen, which leads to the conclusion that Lucilius additionally violated one of the citizens’ rights (ius auxilii), which led to the censorial mark.²¹ Another rule that the censors guarded was the principle of tenure: censorial interventions could, for example, concern situations where an official left the post entrusted to him too early: such an accusation was made against Gaius Gracchus, who returned from the province assigned to him during the quaestorship before the governor had left.²²

Officials had the right to use coercive measures, the extent of which correlated with their powers. The case of L. Quinctius Flaminius, who exceeded his powers by executing a convict at a banquet, which was a violation of the dignity of the office and was therefore sanctioned by a censorial mark, is very interesting in this context.²³

The censors also paid attention to sacred issues, the most significant of which seems to be the power of magistrates to carry out auspices. Abuses in this area could also have formed the basis for the application of the nota.²⁴

The deliberations of the senate were also controlled, and censorial sanctions were threatened against an official who allowed a resolution to pass before sunrise or after sunset.

All this leads to the recognition of the censor’s powers as very broad. An additional rationale may be provided by the concept of an ideal system created by Cicero in his work De legibus.²⁵ The main change proposed is to alter the censor’s term of office. Since the enactment of the lex Aemilia de censura minuenda, it had been 18 months and elections were held every five years: this led to a 3.5-year gap, resulting in a lack of continuity in office. Cicero wanted the term of office to be five years. Only former officials were to go to the senate, leading to the censors being deprived of the possibility of selecting other deserving citizens, but on the other hand, Cicero wanted the censors to receive from the terminating magistrates a report on their performance and evaluate it. This additional power of scrutiny would certainly have been important in holding magistrates accountable for abuses. In addition, Cicero wished to give censors the power to act as watchdogs over laws modelled on the Greek office of νομοφύλακες. This power was intended to prevent the emerging illegal practice of changing the content of laws before they were submitted to the aerarium. This concept demonstrates that Cicero appreciated the importance of the censors’ control tasks and wanted to delimit them more broadly, recognising that this would have a positive effect on the balance of the system.

The Enlightenment theory of tripartite government owes much to the systemic arrangements of the Roman Republic.²⁶ A shortcoming of Montesquieu’s conception,²⁷ however, was the failure to include an element of control on the three, largely separate, powers. This is why many modern political systems have seen the development of such an element in the form of a defensor or ombudsman. Researchers trace the roots of these institutions to the office of the plebeian tribune.²⁸ However, it seems that censorship, by virtue of its control function, may also be at the root of it.²⁹

This institution was directly referred to by Simón Bolívar when he proposed to take the office of censor from the Roman Republic system, which, although initially rejected, later found expression in the 1826 and 1999 constitutions of Bolivia and Venezuela.³⁰

It seems, therefore, that the office of the censor, so unusual and difficult to fathom for foreigners looking at it from the outside, was of colossal systemic importance. During the period of the Republic, it was a bulwark and guarantee of the stability of the state, as well as a controlling element for the individual both in his public and private life. Together with the office of the plebeian tribune, whose powers allowed it to block decisions of the assemblies, the senate or other officials deemed contrary to the interests of the Republic, censorship was an element in the stability of the system.

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