Definition of furtum and the jurisprudential expansion of theft’s cases in the Classical Roman Law. Rereading of Ferrini’s Diritto penale

Abstract

The extraordinary growth of the cases of furtum, until it turned into any ‘malicious action on one thing with a profitable aim’ (Ferrini), other “…every 'dishonest touch' on a foreign (movable) thing with a profitable aim …” (Honsell/Kunkel), was credited to the well-known critical note of Schulz: “The classical conception of furtum was an artificial and unhappy creation of republican and classical jurisprudence... It was not a happy idea on the part of the republican jurists to extend the conception of furtum so far beyond the natural sense of the term.” Under the modern perspective of ‘Better Regulation’, it is also hard to explain this ‘catch-all crime’ reasonably. If the legal-policy reasons of such expansion are far from obvious, it might be the view proposed by Contardo Ferrini in his Diritto penale romano (1902, that summarized many previous contributions): to see in the transition from amotio to contrectatio (Gai. 3,195) the influence of “the theory of possession”, which will provide us a technical argument able to explain, at least partially, these developments.