La punizione dell’omosessualità passiva in CTh.9.7.3. Un’ipotesi di scelta discrezionale della pena in età tardo antica?

Abstract

In Theodosian Code there is a lex generalis enacted by Costantine’s sons (CTh.9.7.3) which punishes passive homosexuality. However, this law uses an unusual and apparently strange form to fix the punishment, because isn’t clear whether the Emperor would establish death penalty other kind of penalty. In fact, furthermore, the doubt which concerns interpretation of this law is that it seems to let the judge free to choose the way of application of the punishment based on his discretion in a period of history roman law in which the penalties were almost fixed in a determined way by Emperor.

Keywords : Homosexuality; Theodosian Code; criminal punishment; gladius ultor; judicial discretion.