Chapter 5 Revision sheet

The Roman family

Instructions:

This chapter should be revised in conjunction with chapter 4. There, the importance of Roman citizenship and the impact of a change in legal status on one’s place in the family were mentioned. It is important to keep the position of children in power and wives into account when studying later chapters as their ability to enter into contracts or to be held responsible for delicts committed are to a large extent determined by the general rules governing patriapotestas.

Aims:

This chapter focuses in greater detail on the legal aspects of the Roman family. It is worth bearing in mind that the Roman family (familia) is different from the modern notion of the nuclear family. It is a much larger group of people that includes both ‘persons’ (under the Roman law of persons) and ‘things’ (non-persons such as slaves). In this chapter, one should form a clear understanding of the following three concepts, agnatio, cognatio and patriapotestas as these appear with great frequency in the text.

Important dates:

The Monarchy [Regal Period]: c 753 – 510 BC
The Republic: 509 – 27 BC

The Empire: 27 BC – 476 AD (West), - 1453 AD (East)

Important statutes mentioned:

Law of the Twelve Tables 451 – 450 BC
Lex Atilia c. 210 BC
Lex Plaetoria 200 BC
Lex Iulia de Adulteriis Coercendis 18 BC
Other Augustan Laws on Marriage
Lex Papia Poppaea 9 AD

Overview:

Focus on the following key facts when revising this chapter

  • To understand the legal significance of the Roman family, one needs to reflect on the basis power structure underlying it and this power structure is founded on the idea of patriapotestas.

Patriapotestas

  • Although modern textbooks neatly distinguish between ‘rights over the person’ and ‘rights over the property’, this distinction should not be carried too far as the reality was perhaps somewhat more fluid.
  • The ‘rights over the person’ seem more ancient than the other category. Pay specific attention here to the ‘right of life and death’ and the ‘right to interfere in the relationships of the children’. The trend here is one of general improvement in the position of the children and a curtailment of the more invasive rights.
  • The ‘rights over the person’ contains important information that should be clearly understood and absorbed at this point, since we will return to this matter in the discussion of the law of contracts. We are here specifically concerned with the issue of the capacity of the child in power to own property separately from the head of the household (compare here the chapter on inheritance as this is an important source of such property as well as the concept of the peculium). As far as the peculium is concerned, parallels should be drawn here with the chapter on the Roman law of contracts where the Roman approaches to agency are discussed. There is a natural affinity between the peculium scenario featuring the child in power and the peculium featuring the slave agent. The one big distinction lies in the liberty and citizenship of the former and the lack of legal personality of the latter.

As for emancipation, this section should be read in conjunction with the chapter on inheritance, since emancipation could have an effect upon the capacity of a child to inherit. Notice also that emancipation could be used both in a friendly and hostile manner. There is an obvious parallel to be drawn between emancipation of the child in power and manumission of a slave. Finally, this section also contains a brief discussion of legitimation of illegitimate children. The question to ask here is what the legal function or purpose of such an action would be and what legal consequences it would have for the child in question.

Marriage

  • All three elements of Roman marriage law (betrothal, marriage and divorce) should be viewed from the perspective of the power relationship between husband (and also Paterfamilias if they are different persons) and wife. There is also a substantial property-law dimension to the Roman law of marriage, especially in the dowry provisions of the wife, and these need to be carefully studied in light of the rules on the maintenance and return of the dowry.
  • Definition of marriage – a complex issue in light of the changes to the marriage regime (from manus to free marriage) and the Roman penchant for not using definitions in the modern sense.
  • Betrothal – notice here the emphasis on contract in the early forms of Roman marriage. What does this reveal about the Roman attitude towards marriage and divorce in early law? Also notice the use of the ‘token of good faith’. We will encounter that once more in the discussion of the contract of sale. Does the decline in the contractual nature of the betrothal in later law relate to the change in the form of marriage?
  • Formal requirements of a marriage:
    • Age (reflect here on the discussions among the jurists about the age of puberty).
    • Consent (reflect here on the impact of patriapotestas on consent and the ability of the paterfamilias to interfere in the relationships of his children by virtue of this power).
    • Conubium (reflect here on the meaning of this term and its use to restrict the right to marry to certain groups of people. This is especially significant in the republican period before the social war when only some of Rome’s allies had been granted conubium).
    • Degrees of relationship (every society has certain rules on this and these are usually dynamic rather than static. Reflect on the Roman approach to these matters).
  • Types of marriage
    • Pay specific attention to the contractual nature of the manus marriage. This has important consequences also for the way in which these marriages could be dissolved. Reflect on the legal consequences of the manus marriage, especially in relation to partiapotestas and manus (the husband’s legal authority over the wife). To understand the main differences between these two forms of marriage, compare the legal consequences arising from them.
    • Reflect here also on a number of relationships outside a formal marriage such as having a concubine. What about relationships between owners and slaves?
  • Divorce
    • Compare the legal consequences of divorce in a manus marriage to those in a free marriage. If you remain unclear as to why these differences exist, reflect back on the legal consequences of a manus and of a free marriage.
    • The Lex Iulia de Adulteriis Coercendis represents a form of state interference in the relationship of individuals. Who was the law primarily aimed at? The result of a conviction was the husband was legally obliged to divorce the wife. What other penalties did this law impose? What effect did the conversion to Christianity have on the grounds for divorce?
  • Dowry
    • Reflect on the original function of dowry in the manus marriage. How did this function change with the advent of the free marriage?
    • In which ways could a dowry be promised or delivered and what were the implications of these modes on the ability of the wife or her ascendants to reclaim the dowry?
    • Who acquired ownership of the dowry under a manus marriage? Did the law provide any safeguards to protect this property from the husband?
    • Ensure that you are able to enumerate the introductions introduced by Augustus and later under Justinian in relation to the return of the dowry.
  • Adoption
    • Reflect on the purpose of adoption in Roman law (especially in light of the importance of the Roman family)
    • What were the main differences between adoption and adrogation?
    • How did the reforms of Justinian alter the Roman law on adoption?
  • Guardianship
    • In this section we focus primarily on the guardianship of those below puberty. Reflect on the need for such an arrangement in light of the concept of patriapotestas.
    • Reflect on the forms of guardianship [since this explains why such an institution was necessary].
    • Reflect on the personal requirements of those wishing to act as guardians as well as their role during their term. What remedies were available to a minor where a guardian had acted inappropriately in managing their affairs?
    • As for the guardianship of women, pay specific attention to the so-called reasons for it, how guardians were appointed and what their functions were. There is a general trend here of decline. Why should that be?
  • Curatorship
    • What is the relationship between guardianship and curatorship?
    • Which groups of people were placed under curatorship under Roman law? What was the functions of the curator in these circumstances?
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