Правило 8 Василия Великого

He who uses an ax in anger at his wife is a murderer. It is fair and worthy of your prudence that you remembered me, but I speak about this in greater detail: for there are many differences between voluntary and involuntary. If someone throws a stone at a dog, or at a tree, it hits a person: this is a completely involuntary act, and was not in the intention of the actor: for his intention was to repel the beast, or to knock down the fruit that was subjected to the blow, it struck him by itself, passing by: and so this is involuntary. It is also involuntary if someone, wanting to correct someone, hits him with a belt or a light rod, and the beaten one dies: for here the intention is considered, as if he wanted to correct the sinner, and not to kill him. In the same way, involuntary murder also includes someone who, defending himself in a fight, with a tree or with his hand, mercilessly strikes an opponent in a dangerous place, with the intention of causing pain, and not completely killing: but this is already approaching voluntary murder: for the one who used such a weapon for defense, or mercilessly dealt a blow, is evident in the fact that he did not spare the person, being possessed of passion. Likewise, one who used a heavy tree and a stone as a weapon, greater than human strength, is counted among the involuntary killers, as if he had one intention and did something else: for in anger he struck such a blow that he killed the one struck, although perhaps his intention was only to strike, and not completely kill. But whoever used a sword, or anything like that, has no excuse, and especially whoever threw an ax at someone. For he did not hit it from his hand, so that the measure of the blow depended on him, but threw it in such a way that the blow, both from the weight of the iron, and from its sharpness, and from the rush across a large space, was necessarily fatal. Absolutely free, and in this case not subject to any doubt, is what is done by robbers even in enemy invasions: for robbers kill for money, avoiding exposure of crime: and those who are at war go to defeat those who resist, with the clear intention not to intimidate, nor to bring them to reason, but to destroy them. Also, if someone gives someone a secret drug to drink (even if it was for some other reason) and kills them, we recognize such a person as a free killer. This is often done by wives, attempting to use certain charms and enchantments to attract others to love them, and giving them medicinal compounds that darken their minds. Although such, having caused death, did not do what they intended: however, for magic and forbidden activities, they are considered free killers. Therefore, those who give medicine for the eruption of the conceived in the womb are murderers, and they also accept infanticidal poisons. About this until now. (Ap. 65; Trul. 91; Ankyr. 21, 22, 23; Basil Vel. 2, 8, 11, 43, 54, 56, 57; Gregory of Nyssk. 5). In this rule, Saint Basil speaks of murders free (έκούσιον), or involuntary (άκούσιον), or close to free (εγγύς έκούσιον), depending on the intention of the one who committed the murder of a certain person. This division of various types of murders is found in ancient Roman law, according to which, in case of voluntary murder, malicious intent (dolus) of the criminal is put forward, in case of involuntary murder, negligence (culpa), and in case of close to free murder, chance (casus); hence the first, according to this right, is called - homicidium dolosum, the second - homicidium culposum, and the third - homicidium causale 39. Saint Gregory of Nyssa also divides murders in the same way in his 5th rule, as we will see below. Voluntary murder occurs, according to this rule, when any person, male or female, intentionally and deliberately takes the life of someone. Which of the murders Saint Basil considers free is clear from the rule itself. To this category of murders he also includes the murders of those fighting in the war, who “go to defeat the enemy with the clear intention, not to intimidate, nor to bring them to reason, but to destroy them,” and subjects them to the same punishment, along with other free killers, although, as we will see below, the same St. the father, in his 13th rule, softens his present strict judgment about warriors killing enemies in war. Which of the murders this holy father classifies as “involuntary and close to free” is clear from the rule itself. When qualifying murders, it is taken into account, as mentioned above, mainly the motive due to which it was committed, therefore the subjective side of the killer, namely: whether the crime was committed with malicious intent (δόλος), or through carelessness, negligence (αμέλεια), or by accident (τύχη). The first is a free, conscious (intentional) violation of the existing law, through which (violations) someone seeks to achieve what is prohibited by law. The main thing here is the illegal will carrying out a criminal act. This illegal will is subject to punishment, not only when the crime is committed, but also when it is not committed, even if, therefore, there is no victim. Negligence or imprudence is imputed to a person in the case where, due to inattention, without intent, he commits some criminal act that he did not think about at all, but which, however, with constant care and vigilance, could have been avoided. This legal principle, which existed in Roman law from time immemorial, was accepted by the church, especially since the purpose of its legislation was that not only all its members should fulfill the prescriptions of the laws, in order to preserve good order, but that everyone should observe that nothing should happen that could be harmful both for society and for individuals, so that, therefore, public life could develop correctly. According to this, any harm caused to society or an individual due to someone’s carelessness, although judged more leniently than an intentional crime, is still punished, and especially if the consequences of such carelessness were more serious and the imprudence was greater. In this last case, imprudence is very close to malicious intent, as a result of which a crime committed due to this great imprudence is often punished as malicious. A crime committed accidentally is not punishable. However, if this incident, as a result of some act that is not punishable in itself, becomes the cause of a punishable case, then the court then imputes such (the case) to a known person and he is subjected to an appropriate, even the smallest punishment. Mommsen, Romisches Strafrecht (Leipzig, 1899). S. 613 et seq. You might be interested in: