Reasons for punishment and acquittal in the Noctes Atticae by Aulus Gellius

Abstract

In his Noctes Atticae, Aulus Gellius introduced his reflections not only on the use of terms to describe modes of punishment, but also on the question of whether one can be punished for an act not committed. In the fourteenth chapter of the seventh book, he described three reasons for punishing crimes, as his teacher L. Calvenus Taurus had written about in his commentary on Plato’s Gorgias, which explained that punishment was used to rebuke and correct a criminal ‒ i.e. as special prevention; when punishment had a justice function; and when punishment was necessary as an example, so that others would not commit crimes, i.e. as general prevention. Plato himself, however, as Gellius points out, listed two reasons for punishment, one for the sake of improvement and the other for the fear of punishment. The problem, however, of whether one can be punished for an act intended but not committed is presented by Gellius in the third title of the sixth book on the occasion of his polemic against Tullius Tiron’s criticism of Marcus Cato’s pro Rhodiensibus speech. Tiron accused Cato of adopting the wrong strategy and making dishonest use of cunning sophistic tricks. According to Gellius, Cato may have defended the Rhodians in a more structured form, but certainly not with greater energy and commitment. It was therefore unfair on Tiron’s part, according to Gellius, to select from Cato’s rich and pertinent speech only a certain passage of speech to criticize him as if it was not worthy of Cato to assert that one should not be punished for the mere intention to commit a crime if it had not been committed.