Comparative Law Notes 6

LAW 6250
Professor Pedro A. Malavet

Class Notes Part Six

Chapter 7. Roman Law
Historical Development of the Civil Law Tradition

Here, we start to study the sub-traditions of the civil law, as listed below. We will spend very substantial class time on the historical foundations of the sub-traditions. Simply put, law was not invented yesterday, it has been around for as long as more than two humans have tried to live together, and many apparently contemporary legal rules have very ancient origins. This process of discovery can be quite enlightening and even fun. However, I have warned that history and law are written by the powerful and they reflect the biases of the time. Thus, we will find sexism, racism, xenophobia, religious bigotry (especially anti-Semitic and anti-Muslim laws), and various other offensive trends in our study. For those who are interested in a different view of the world, I will occasionally post links to relevant web sites, such as:

Diotima: Materials for the Study of Women and Gender in the Ancient World

You might also be interested in the following books, which are available in the Legal Information Center:

Gardner, Jane F., Women in Roman Law and Society (1986).

Gardner, Jane F., Family and Familia in Roman Law and Life (1998).

Nicholas, Barry, Introduction to Roman Law (1987).

Sub traditions (from the Merryman casebook:
(1) Roman Civil Law
(2) Canon Law
(3) Commercial Law
(4) The Revolution
(5) Legal Science
(6) Modern Constitutionalism

Chapter 7: Roman Law Roots of the Civil Law Tradition

There are many practical reasons to study Roman Law. Geographic expansion is one reason why Imperial Law made it into territory that is now covered by, importantly for our purposes, the Western European Nation-States that produce the Civil Law Tradition.

Map from Hyperhistory

A. Introduction: Uses and Misuses of Law in Legal History
Alan Watson, Ancient Law and Modern Understanding: At the Edges 1-19 (University of Georgia Press1998) (footnotes omitted).

Historical Basis: Europe,
A disclaimer
History and law are written by the powerful and they reflect the biases of the time. Thus, we will find sexism, racism, xenophobia, religious bigotry (especially anti-Semitic and anti-Muslim laws), and various other offensive trends in our study.

Why Roman and Canon Law?
There are many practical reasons to study Roman Law.
Geographic expansion is one reason why Imperial Law made it into territory that is now covered by, importantly for our purposes, the Western European Nation-States that produce the Civil Law Tradition.

GRAPHIC: World Map

GRAPHIC: Bayeaux Tapestry:
The Death of Harold II at the Battle of Hastings in 1066

GRAPHIC: Spanish Empire (in the Americas)
1800

GRAPHIC: Europe in the late 1990s

GRAPHIC: Legal Sources during different
periods of the Roman Empire

GRAPHIC: The Mediterranean  Region Today

GRAPHIC: The Roman Empire

GRAPHIC: Europe after the fall of the
Western Roman Empire (476 a.d.)

GRAPHIC: Europe after the Fall of Rome

GRAPHIC: Spain, circa A.D. 1210

GRAPHIC: Europe, circa A.D. 1519-1556

GRAPHIC: Northern Italy during the Middle Ages

GRAPHIC: Europe at the end of the 18th Century

Introduction: Uses and Misuses
of Law in Legal History
Alan Watson, Ancient Law and Modern Understanding: At the Edges 1-19 (University of Georgia Press1998) (footnotes omitted).
Be careful when doing legal history work

Example: “Freedom”
of 17^th Century Dutch Women
The Embarrassment of Riches: Love and affection were at the core of the marriage bond
Basis: quote attributed to Hugo Grotius
Problem: It was said by Byzantine Emperor Justinian (6^th Century A.C.E.)
Problem: Mistranslated.
Correction: “For it is not coitus that creates a marriage but the intention to be married”.

“Freedom” and “Affection”
Problem: The Byzantines and Romans were misogynist bastards
Lessons: Check your sources and go back to the primary
Lessons: Language fluency is critical when studying another legal culture
Lessons: Legal rules and institutions may not be a mirror of the society

Technical Caveats,
Try to find primary sources (or at least double check your sources)
Learn the original language(s) with which  you are dealing
This might mean a language that is now dead, such as old Castillian Spanish (the language of the Partidas), or medieval Latin (as opposed to classical).
Careful about conclusions regarding the society from law and its institutions

Legal Borrowing?
Blackstone’s Commentaries
Legal borrowing in the middle ages was not based on working legal systems, but rather on accessible written law.
(Might this also be true today?)
Blackstone “borrowing” from Gothofredus, who misinterpreted the Institutes of Justinian,
Lesson: “Local” law might not be so local after all

Language
Note the language point regarding “Ius”, which can indeed mean “rights” or “law” and the “law of things” is still a general Civil Code category

Marital Property
Is marriage a partnership for profit?
Dowry: contributed by the wife’s family, but wife did not share in husband’s property
Community Property: both spouses share assets and liabilities accumulated during marriage
Motivations
To protect the wife
To protect surviving spouse against heirs of pre-deceased spouse
To provide capital for husband’s enterprise

Marital Property and the Fuero Juzgo
Fuero was a translation of a Visigothic code
Survived even though Visigoth’s only 5% of peninsula population and even after Moorish conquest in 711
Was imposed as law during what Spaniards call the Reconquista of the peninsula by the Christian rulers
It was available? And included a form of community property.

Community Property in Mexico/California
Kept after the 1848 Treaty of Guadalupe Hidalgo ended the Mexican-American War
Expressly kept in the California Constitution, with acknowledgement of both community and separate property

Community Property in California
But why?
Gender progressiveness?,
Concern about protecting family wealth?
Simplicity?
It was existing law
It compares/contrasts well to common law regime

Shifting your context
Movable (“chattel”) vs. Immovable (generally land) property
Not much distinguished by the Romans, in the manner of control or transfer
res mancipi and res nec mancipi. Land in Italy was in the former category along with slaves, cattle, horses, mules, asses, and those burdens on land known as rustic praedial servitudes.
The difference was in mode of transfer, mancipi required traditio (delivery) AND mancipatio (legal public transfer)

Note the legal language
Usucapio: adverse possession
The root of most modern words for adverse possession is romance languages
Interdict: writs for the protection of property
This is the traditional translation for injunction

The Rights of Women,
Women had many formal rights in Roman law, especially if nor under potestas, and to receive property by will and to contract
Were Romans not sexist?
Why did Mexican law guarantee more formal rights to women than contemporaneous U.S. law?

Countries that Permitted
Paternity Suits
Belgium, Bolivia, Costa Rica, France, Geneva, some German states on the Rhine, Greece, Haiti, Hesse, Holland, Italy, Luxem¬bourg, Monaco, Naples, Neuchatel, Romania, Russia, Sardinia, Serbia, Ticino, Uruguay, Vaud, and Venezuela
Tradition vs. what other factors? Religion, economy

Countries that did NOT
 allow Paternity Suits
Austria, Bavaria, Bern, Brazil, lower Canada, Chile, Denmark, El Salvador, England, Freiburg, Glarus, Guatemala, Honduras, Hungary, Norway, Peru, Prussia, Saxony, Scotland, Spain, Sweden, Wurttemberg, Zurich, and much of the United States

Spanish Louisiana?
Spain takes possession in 1769
France in November of 1803
U.S. in December of 1803

Napoleon and Paternity Suits
Art. 340 of the Code Civil precluded all paternity suits,
But there are presumptions of paternity for “legitimate children,” I.e., those born in lawful wedlock
Old pre-revolution rule: the mother’s word had to be accepted
Why reject pre-revolution laws?

Final conclusion,
Legal History is a comparative type of history and it must be approached with comparative methodology and sensibilities
Legal copying and inertia, rather than actual societal conditions may explain law
Accordingly, we must be very careful when using law to explain societal conditions

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B. The Roman Law Tradition

David Ibbetson and Andrew Lewis, The Roman Law Tradition in David Ibbetson and Andrew Lewis, Eds., The Roman Law Tradition (Cambridge University Press 1999). Pp. 18-35

The Influence of Roman Law
Geographically huge
Persisted even in places with strong local traditions (even legal ones)
Fundamentally based on intellectual methodology using techniques of analogical and deductive reasoning

Method development
Classical period: 100 BCE to 250 ACERecord of it
Made/Preserved in the Eastern Empire after the fall of Rome in 476 a.d. (the Eastern Empire falls to the Ottomans in 1453)

Corpus Juris Civilis:
Romulus Augustulus, 476 a.d., fall of Rome.Compilation of Justinian's Digesta, Codex and Institutiones, supplemented by the Novellae.
1) CODEX: there are two: 529, 534 a.d., compilation of laws from prior codes and constitutions, eliminating repetition and obsolete rules;
2) DIGEST: mostly opinions of jurists that had been issued as responsa;

Corpus Juris Civilis:
3) INSTITUTES: a basic law book intended for educational purposes, succinct statement of the new law;
4) NOVELLAE: special statutes, decisions or instructions issued by the Emperor after the code. From the Imperial Constitutions.

Survival in Europe
Continued use of Roman administration (and law) in post-empire Europe
Survival of roman texts during this period

“Revival” in Europe
Recovery of Roman texts in the 11th century (the Pisana/Fiorentina and the Second code).
Investiture Controversy between Popes and Holly Roman Emperors (principally 1075-1122)
Legal “Renaissance”

The Law School at Bologna
Glossators: quite literal transcribers of Roman Law
But this nonetheless had great influence in receiving Roman law in Europe, because it spread it,
through writing, and through the work of law graduates

Infiltration into national systems
Even as customary law was put into writing, Roman law and its form crept into the process
It as widely available in writingIt filled in gaps in custom (and sometimes replaced it)
Method of Roman legal reasoning  was re-discovered
Post-glossator period in which law was organized and cross-referenced

Infiltration continues
Roman law favored temporal rulers and was thus pro-Imperial
Roman law was “safe”
Roman law was presumptively valid and available
Ends the “first wave” of infiltration

Second Wave:
AcademicStarts in the 16^th Century
Humanists: more critical and reliable texts of Roman law
Academic and Literary
Historical context and method are improved

Second Wave:
Harmonisation with Custom
Practical: Germany
Roman law was presumptively valid and required no proof in litigation
Written texts of local law with Roman law and Custom
Eventually leads to codification in the late 18^th century (note Prussian Code).

Common law
The development of International Law
The development of secular Natural Law
Even reaches Scotland in the 16^th century

England and the Common Law
In England there was encroachment in the 12^th and 13^th centuries
but it was stopped by remedy-based legal development which now leads to separation from the rest of Europe
Remained as an academic literature
In the 19^th century becomes a source of law in the common law

Continental Europe
Uniformity in law
Concepts and categories
Legal philosophy and method

Political Influence
Sovereign power

The Maps

Europe after the fall of the
Western Roman Empire (476 a.d.)

Europe after the Fall of Rome

The Expansion of Islam

Expansion of Islam (2)

The Caliphate of Cordoba

Spain, circa A.D. 1210

Europe, circa A.D. 1519-1556

Northern Italy during the Middle Ages

Europe at the end of the 18th Century

The Holy Roman Empire

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C. An Overview of Roman Law

In studying Roman Law, keep in mind that we are talking about a legal system that evolved over a period of at least 11 centuries. The three most important periods, for purposes of our study, are the Republic, the Principate and the Dominate. Over time, these periods represent increased centralization of power in the hands of the Emperor and the diminishment of the authority of the legislative bodies, the Assemblies and the Senate. Correspondingly, the discretion allowed the Praetors and other magistrates below them in exercising the power of Imperium first increases, as power is being taken away from the legislative bodies, and then decreases as the emperors consolidate their absolute authority.

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Overview of Roman Law:
Timeline
The selections in this book cover the period from the reign of Augustus (31 B.C.E.-14 C.E.) to the fall of the last Roman emperor in the western Empire in 476 C.E.
The “classical” period is generally defined as running from the early first century B.C.E. to 235 C.E. (Death of Alexander Severus)
“late antique” is often seen as extending from the early fourth through the sixth centuries

Corpus Juris Civilis: Digest
Juristic Opinions Compiled during reign of Justinian (527-565 CE)
Unlike the emperors and the Senate, jurists were not makers of law, but rather interpreters of it. However, passages from the jurists preserved in the Digest often discuss, and sometimes quote verbatim, imperial enactments and also laws passed by the Roman Senate (senatusconsulta). Nor were jurists always in agreement with each other on points of law

Corpus Juris Civilis:
The Institutes of Gaius 
The most important is the Institutes of Gaius, a handbook dating to the second century C.E. which has survived virtually complete.
Other handbooks also survive

Corpus Juris Civilis:
The Codex of Justinia 
Codex Justinianus or Code of Justinian. Whereas the Digest contains extracts from jurists' commentaries, the Code is a collection of legal enactments by Roman emperors from Hadrian (reigned 117-138) up to Justinian, under whose auspices the Code was published in 534.

Imperial Enactment
General Laws (used starting principally after Constantine (307-337)rescripts (subscriptions, or more generally, rescripta): replies given by the emperor to petitions from individuals, mostly private subjects, who had written to the emperor for information or assistance on particular points of law. Rescripts were probably not the work of the emperors themselves, but were composed by the imperial secretary a libellis ("for petitions") and signed (subscribed) by the emperor.
Note procedure

Imperial Rescripts, Democratic?
2500 rescripts in the Code of Justinian date between 193 and 305; more than half are from the reign of Diocletian (282-305). The recipients of imperial rescripts represent a much broader spectrum of the population of the Roman Empire.
About a fifth of all the rescripts are addressed to women (a quarter for the reign of Diocletian) - a far greater representation of women than in any literary source of Greco-Roman antiquity.

Corpus Juris Civils
Romulus Augustulus, 476 a.d., fall of Rome.
Compilation of Justinian's Digesta, Codex and Institutiones, supplemented by the Novellae.
1) CODEX: there are two: 529, 534 a.d., compilation of laws from prior codes and constitutions, eliminating repetition and obsolete rules;
2) DIGEST: mostly opinions of jurists that had been issued as responsa;

Corpus Juris Civilis:
3) INSTITUTES: a basic law book intended for educational purposes, succinct statement of the new law;
4) NOVELLAE: special statutes, decisions or instructions issued by the Emperor after the code. From the Imperial Constitutions.

Theodosian Code
Note that the principate, the classical age, ends with the death of Alexander Severus in March of 235, CE
The empire divides into Western Empire (capital Rome) and Eastern Empire (capital Byzantium)

Note the language of law
Different in distinct eras
More direct and blunt during the principate
Very Rhetorical during the Dominate

Theodosian Code
In 438, ACE, Theodosius collects Roman Laws from the time of Constantine (starting in 307 CE)
Compilation rather than selection of laws (which the Corpus Juris is)

Status and Citizenship,
The Roman aristocracy, the patricians, had the most rights and composed the Senate
The lower classes, the plebeians, most of the population, composed the Plebeian Assembly
Citizens had most rights and non-citizens (peregrini) very few, until 212 CE

Classes in the Classical Period,
“more honorable” (honestiores)
The honestiores were those of higher status, who received public honor and legal privileges: members of the Senate and their children and grandchildren, equites (equestrians), decurions (town councillors), and military veterans.
“more lowly” (humiliores). All others.
Hadrian (117-138), distinction enshrined in law.

Augustus
Marriage outside of class forbidden
No actors and no acting
Censorship

The Class system is modified
3r century, CE,
Senate expands in size but loses even the pro forma authority it has had since Augustus
Equestrians, persons of worth, become much more influential

Women in the empire,
Could not hold office as senators or magistrates
(Note that “magistrate” in Roman law is an official with executive, legislative and judicial powers over his area of competence)
Could wield considerable influence either through class/money status or religious offices
Ingenuous woman: “freeborn”.

Distinguish:
Magistrate
Roman Governmental Official With Legislative, Judicial And Executive Power, i.e., Imperium.
Iudex
Lay persons who resolved questions of law and fact in individual disputes

Magistrates (in the Republic)
Consuls
Praetor Urbanus
Praetor Peregrinus
Curule Aediles
The Senate
The Assembly (Patricians, Plebeians, All)

Slavery was central
Slavery was central in Roman law, and life
Many differences in status
Peculia (peculium singular) a fund or allowance given to slaves and children
Manumission: legal freedom for a slave

Crime and Punishment
Largely dependent on class (especially of the victim)
Death and exile were common penalties for the upper-class
Torture was routinely used, though honestiores were immune as long as they did not attack the emperor

Crime and punishment
For lower-class humiliores corporal punishment
Brutal execution for serious crimes (burning, crucifixion or the arena)

Some additional notes on Roman Legal Sources

The Republic, the Principate and ?the Dominate
(1) Increased centralization of power in the hands of the Emperor
(2) the diminishment of the authority of the legislative bodies (Assemblies and Senate).
(3) Discretion allowed the Praetors and other magistrates in exercising the power of Imperium first increases, as power is being taken away from the legislative bodies, and then decreases as the emperors consolidate their absolute authority.

Distinguish:
Magistrate?Roman Governmental Official With Legislative, Judicial And Executive Power, i.e., Imperium.
Iudex?Lay persons who resolved questions of law and fact in individual disputes

General Classifications of Roman Law
(1) Statutes
(2) Edicts by Magistrates
(3) Interpretatio by Jurists

Laws of the Roman People
1) Acts: Statute(s), Lex, Leges
2) Plebeian Statutes: Plebiscite(s), Plebiscitum
3) Resolutions of the Senate: Senatusconsulta
4) Imperial Enactments: Constitutiones Principis, Edicts, Decrees, Letters, Edicta or Mandata, Decreta, Rescripta
5) Praetorian Edicts (or of those authorized to issue them): Jus Praetorium, Jus Honorarium
6) Answers Given By Jurists:?Juristic Statements, Juris Consulti

Distinguish Leges and Plebiscites
1) Acts: Statute(s), Lex, Leges?Passed by the full citizenry, i.e., Patricians and Plebeians in a single assembly
2) Plebeian Statutes: Plebiscite(s), Plebiscitum?Passed only by the Plebeian Assembly
4) Imperial Enactments: ?Constitutiones Principis
Edicts: Edicta or Mandata
Decrees: Decreta
Letters: Rescripta
5) Praetorian Edicts
Note that all magistrates could issue edicts, including, of course, the Emperor.
Jus Praetorium, Jus Honorarium, The Praetorian Edicts become an important source of law
Forms of Action: the man who controls the granting of remedies controls also the development of law

The formulary system

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D. The Status Of Women In Roman Law, 56-72

Example: Women included
Proculus and (following him) Javolenus upheld the more generous interpretation of the father's will, that by "son" (filius) he meant all his children, female as well as male. Labeo on the other hand did not want to take the Latin filius inclusively. Another case where jurists expressed uncertainty about the inclusiveness of a father's use of the masculine term occurs at D. 50.16.122 (Pomponius), where a father had appointed guardians for his filius in his will. Clearly, a prudent parent would want to be explicit.

Oh, but not men with women
But the reverse should not be accepted, that males are included also in the name of "daughters": for it is a very bad model for males to be included in a feminine word.

Familia: Household? P. 59
familia comprised all those under the legal power (potestas) of the male head, the paterfamilias.
Ulpian: Strictly speaking, we call a familia several persons, who are subjected under the power of one person, either by nature or by law, as for instance, the father of the family (paterfamilias), the mother of the family (materfamilias), the son of the family (filiusfamilias), the daughter of the family (filiafamilias) and those who follow them in succession, as for instance, grandsons and granddaughters and so on.

Paterfamilias, p. 59
Ulpian: he who has dominion in the home is called paterfamilias, and he is called by this name correctly, even though he does not have a son; for we are describing not only the person, but also the legal status. In fact, we call even a fatherless male ward (pupillus) a paterfamilias. And when the paterfamilias dies, all persons (capita, literally, "heads") that were subject to him begin to have their individual families: for individuals succeed to the name of fathers of the family.

Women not under potestas, p. 60
If a woman's paterfamilias died or emancipated her, she became legally independent (though she still needed a tutor mulierum; see Part III below), but she could never become a paterfamilias herself because she could never have legal power (potestas) over anyone other than herself. Even her own children were not under her potestas, but that of her husband (their paterfamilias), and therefore they were part of his familia, not hers

Materfamilias
The term materfamilias ("mother of the family") had an interesting array of meanings. In early Roman usage, materfamilias described a wife whose marriage brought her in manu, that is, under her husband's legal power [Part ILB]. However, by Ulpian's day (early third century), manus-marriage was obsolete, and materfamilias referred to a respectable matron, whether married or not

Authority over women, 62
patria potestas ("paternal power"),
manus (subordination to a husband's legal power), or
tutela ("guardianship"), for those not under potestas or manus.
(Slavewomen, like slavemen, would be under the control of their master or mistress.)

“Evolution”?, p. 62
By the reign of Augustus, manus had practically disappeared, and Augustus himself weakened tutela mulierum by granting freedom from tutela to freeborn women with three children and freedwomen with four [see Chapter 2, Part LB].
Patria potestas, however, survived until the end of antiquity, though weakened by late imperial legislation

Potestas, p. 63
He had the "right of life and death" (ius vitae necisque) over them, and theoretically could put even an adult child to death.
Far more relevant to Romans of the imperial period than the theoretical ins vitae necisque was the father's control over all his children's possessions. Children under patria potestas could not own property. Everything given or bequeathed to them legally belonged to their paterfamilias. Only when the paterfamilias was dead (or had emancipated them; see Part C below) could his children, both male and female, own property in their own names.

Manus (marital subordination), p. 65
A wife in manu could not own property; any possessions she had when she married would henceforth belong to her husband (or to his paterfamilias, if he was still alive). She would inherit equally with her husband's children under intestate succession. However, a husband did not have the "right of life and death" over his wife.

“Evolution”: the end of manus, p. 65
Instead, almost all Roman women entered a form of marriage in which the wife remained under her father's potestas, though she would leave her family's home and live with her husband. Her children were in the potestas of their father (her husband), but she was still under patria potestas until her paterfamilias died, at which point she became sui iuris.

Old types of manus, p. 66
manus by usus; indeed, since she was taken by usus by means of yearly possession (avoidable by leaving household once a year)
manus by farreum through a certain kind of sacrifice, which is made to Jupiter Farreus
manus by coemptio through mancipation (mancipatio), that is, through a kind of imaginary sale.

Tutela Impuberium (guarndianship for minors), p. 68
Those who had not yet reached puberty (considered to be age fourteen for boys, twelve for girls) when their father died would be placed under tutela impuberum ("guardianship of those below puberty").
The original purpose of tutela impuberum was to safeguard the child's property in the interests of the agnate relatives until the child was mature enough to manage the property. By the time of Augustus, there was a feeling that guardians should be concerned with their wards' welfare as well as their property, and this belief in the tutor's moral responsibility intensified in the later Empire

The Guardianship of Women, p. 69
Under classical Roman law a woman whose paterfamilias was dead and who had not entered manus-marriage was required to have a "guardian." If she was still below the age of twelve when her father died, she would have a tutor impuberum (see Part II.C), but aged twelve she would come under tutela mulierum - the "guardianship of women."
Lasted until two centuries before justinian, roughly until 300 CE

E. Marriage In Roman Law And Society, 73-95

Life Expectancy
During the Roman Empire, Romans had a approximate life expectancy of 22 to 25 years. In 1900, the world life expectancy was approximately 30 years and in 1985 it was about 62 years, just two years short of today's life expectancy
http://geography.about.com/od/populationgeography/a/lifeexpectancy.shtml

Upper Class Life Expectancy
Tombstones suggest that it was 34 for women and 46 for men
Male births were favored and female infanticide or abandonment was common. Childbirth was also dangerous.
http://encarta.msn.com/encyclopedia_1741502785_7/Roman_Empire.shtml

Marriage in Roman Law, pp. 73-105
The importance of marriage
it joined not only two individuals but two families
Legitimacy: Only from legal marriage (iustum matrimonium or iustae nuptiae) could legitimate children, who would be their father's heirs, be born. Thus it was important to define what constituted a legitimate marriage and what did not
When do you believe that the distinction between legitimate and illegitimate ended?

What is Marriage?, p. 73
The Romans considered marriage a partnership, whose primary purpose was to have legitimate descendants to whom property, status, and family qualities could be handed down through the generations. Marriage and procreation were not only socially useful, they were in accordance with natural law:
D.23.2.1 (Modestinus): Marriage is the joining of male and female and a partnership for all of life, a sharing of divine and human law.

Consent and Legal Capacity
Cohabitation and sexual intercourse did not make a marriage,… nor did their absence necessarily imply the absence of marriage, pp. 74-75
D.50.17.30 (Ulpian): Sleeping together does not make marriage, but consent does.
D.24.1.32.13 (Ulpian): Indeed, if a woman and her husband have lived apart for a long time, but kept the honor of marriage on both sides, which we know sometimes ensues even among consular persons, I think that gifts (between them) are not valid, just as if the marriage has lasted. For sexual intercourse does not make a marriage, but the marital frame of mind (affectio maritalis) does.

Formalities of Marriage, p. 75
Not religious, but compilers were Christians and would eschew pagan rituals
“Escorting of the Wife”: deductio in domum, an escorting of the bride into the husband's home. This could lead to a woman becoming a widow before her marriage had been consummated
In Florida, generally you must be a man and woman over the age of 18, with a valid marriage license, and ceremony performed by clergy, judicial officer or clerk, or notary public. Fla. Stats. Ch. 741.

Marriage like a Mortgage?, p. 76
The jurist Gaius pointed out that a marriage, like a mortgage (hypotheca), depended for validity on the consent of both parties, not on written documentation:
D.20.1.4 (Gaius): [the beginning of the passage is omitted here) For written documents are made about these things (mortgages), in order that through them (documents) what has been done can be proved more easily. Even without these, however, what has been done is valid, if there is (unwritten) evidence to prove it.4 Just as also a marriage exists, though testimonies (to it) have not been put in writing.

Augustus’ Marriage Laws, pp. 77-78
All males (25-60) and females (20-50) obliged to marry and to have children.
Children earned rewards for the marriage
Unmarried persons, especially women, suffered financial penalties, such as the loss of the right to inherit

Adultery, p. 78
Adultery, defined as sexual relations between a married woman and a man other than her husband, became a criminal offense to be tried in standing courts. Conviction led to relegation to an island and confiscation of property (for a woman, half her dowry and a third of her other property; for her male lover, half his property)
Cause for divorce
Treated as a crime, as was extramarital intercourse with unmarried upper class woman

Post-Classical Marriage, p. 79
In 320, the emperor Constantine repealed the inheritance penalties on the unmarried [Part II.A], and in the early fifth century, the restrictions on inheritance between childless spouses were lifted. Most of the prohibitions on marriage between those of different rank were lifted by Justinian in the mid-sixth century. The adultery legislation continued in force throughout antiquity, with some changes under Constantine.

Resistance to Augustus’ Rules, p. 81
The last sentence refers to two ways men reluctant to marry were avoiding fulfilling the intention of the law: they were marrying in order to receive a legacy and then divorcing soon afterwards, or were betrothing themselves to girls well under the legal marriage age of twelve (before Augustus' later tightening of the law, being betrothed had been considered compliance).

Age, p. 84
12 for girls, 14 for boys (in post-classical times)
Usually Roman women married in their mid- to late teens, with the elite marrying earlier, perhaps in their early teens [Shaw 1987a; cf. Hopkins 1964). There was no legal age of marriage for men in the classical period, but few males would marry before twenty, and most seem to have married in their mid- to late twenties, with the elite again marrying a few years earlier

Betrothal, p 85
In the case of first marriage for a young woman (who might be as young as twelve), the choice of spouse and arrangements for the marriage would be in the hands of her parents. They (primarily the father) would investigate the possibilities for suitable husbands and undertake negotiations with the families of potential spouses. It was assumed that parents, with greater experience of the world and society, were much better able to make this important decision than the young woman herself, who (if she had been properly brought up) would have little direct knowledge of the opposite sex.

Consent, p. 85
It was essential for both betrothal and marriage to be valid that all parties consent to it: the bride, the groom, and those who had patria potestas over them. (A mother's consent, while not legally required, was clearly advisable.)

Consent: Conflict, p. 87
tension between the idea that marriage was a public good to be encouraged and the legal authority vested in the paterfamilias:
Sent. Pauli II.xix.2: The marriages of those who are in their father's power are not lawfully contracted without his agreement, but once contracted, they are not dissolved. For consideration of the public benefit is set before the convenience of private individuals.

Dowry, 89-90
Usually given, at least among upper classes
Not usually in lieu of inheritance
Nor did it replace peculium (funds granted by a paterfamilias to his children for their own use)

Dowry, formalities, 90
Since property was involved, dowry agreements were often made in writing, even when there was no marriage contract per se. The pact would usually be made before the marriage took place and the contracting parties would be the paterfamilias of each party [or a sui iuris’s woman’s tutor].
"profectitious dowry," contributed by paterfamilias, that contributed by others was "adventitious"

Dowry:
Paterfamilias obliged to give it upon lawful marriage
If paterfamilias died, it was an obligation for his legal heirs to pay a dowry

Dowry
Belonged to the husband during marriage, but it was unwise to treat it as something other usufruct because he might have to pay it back
If husband pre-deceased wife or divorced her, she or her pater could claim it back
If wife pre-deceased her husband, he could keep the adventitious dowry, but that contributed by her paterfamilias reverted to pater.

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F. Family Law: Patria Potestas, 345-354

Table IV [of The Twelve Tables]
Law IA father shall have the right of life and death over his son born in lawful marriage, and shall also have the power to render him independent, after he has been sold three times.
Law II:?If a father sells his son three times, the latter shall be free from paternal authority.

TABLE IV
Law IIIA father shall immediately put to death a son recently born, who is a monster, or has a form different from that of members of the human race.
Law IV?When a woman brings forth a son within the next ten months after the death of her husband, he shall be born in lawful marriage, and shall be the legal heir of his estate.

Patria Potestas, p. 349
Oldest male head of household held it
It extended over all descendants, including adults and married daughters not given in manus
It included the power of life and death
A person in potestas could not own any property
Paternal power only ends when he dies

Alternatives, p. 349-50
Emancipatio, initially the sale of the son three times, followed by manumission
Eventually emancipation becomes a simple legal process
Other forms of emancipation, such as by age, imperial service

Upon Emancipation
Outright Ownership of 33%
Usufruct over 50%

Solutions: Emancipation
Emancipatio (Emancipation)
Sui Iuris, or Sui Juris, the state of being free from potestas, i.e., the enjoyment of civil capacity
In Iure, or In Jure, the state of being subject to, i.e., under potestas also known as in manus.
Peculium: Funds
Note that slaves also got these

Problem: Property Under Potestas, p. 349
Military Fund Excepted, but otherwise Pater owned everything.
Proceeds earned by person under potestas, using pater’s property, belonged to the pater.
Property and earnings not from pater (inheritance), belonged to the son with usufruct on the pater.

Solutions: Peculia
Peculium generally: Fund for free descendants
Peculium Castrense (Military Funds)
Peculium for Public Service (being in the employ of the Emperor)

Old notes:

Family Law: the Effects of Patria Potestas, pp. 95-105
Why adoption? To what purpose(s)?
The un/intended consequences of patria potestas on economic and political life?

Digest of Justinian: Adoption, p. 95-98
Sons-in-power are subject to adoption; people who are sui juris, to adrogatio
Women could be adrogated by imperial rescript
Bachelors could adopt
No pre-determined “reversion” of adoption

The Economic Effects of Potestas
Only the paterfamilias could own property or make use of economic wealth
What effect would this have on the economy?
Solutions: emancipatio and the peculium, which profoundly modified the working of patria potestas though they had little effect on legal rules

Emancipation, 100-101
According to Gaius writing in the second century A.D., the father mancipates the son to a third party who in turn manumits the son vindicta. The son reverts to the father’s potestas, and he mancipates the son again, and again the recipient manumits him. The process is repeated once again, and the son is then free from paternal power and independent.
A.D. 236-284 for instance, there are 63 rescripts which deal in any way with parent and child and 14 of these show there was an emancipatio. For the succeeding reign of Diocletian the corresponding figures are 112 and 36.

Solutions: Peculia under Roman Law
Peculium generally: Fund for free descendants
Peculium Castrense (Military Funds)
Peculium for Public Service (being in the employ of the Emperor)

Peculia Limits, 101-102
If a son, of whatever age, made a contract with a third party and failed to perform adequately, that third party could not enforce against him a judgement for financial compensation since the son owned no property. Again even when a son was granted the right of full administration of his peculium this did not entitle him to make gifts. And when he died, no property rights passed since he owned no property. In keeping with this, a son, a filiusfamilias, could not make a will....

Extent/Limits of Patria Potestas
Life or death, likely did not last long
Sale, not apparently exercised often
Noxal surrender had disappeared for females by the time of Gaius, for males it was eliminated by Justinian

Table IV [of The Twelve Tables]
Law IA father shall have the right of life and death over his son born in lawful marriage, and shall also have the power to render him independent, after he has been sold three times.
Law II:If a father sells his son three times, the latter shall be free from paternal authority.

TABLE IV
Law IIIA father shall immediately put to death a son recently born, who is a monster, or has a form different from that of members of the human race.
Law IVWhen a woman brings forth a son within the next ten months after the death of her husband, he shall be born in lawful marriage, and shall be the legal heir of his estate.

4. Some materials on Inheritance law in Roman Law, Sources of law, Tort, Inheritance, Merryman casebook at pages, 245-255

Note that the Lex Aquila is considered an historical antecedent of much modern criminal and tort law.

In the inheritance area, note that the cause of action for undutiful will is the origin of the idea of Forced Heirship, which is still the prevalent rule in the civil law world.

2.18 IRRESPONSIBLE WILLS [From the Institutes of Justinian] (CB-251-252)

Heads of families often disinherit or omit their children without good reason. Those aggrieved at being unfairly cut out or passed over are allowed the complaint of an irresponsible will. *** in making an otherwise valid will he failed to keep his mind on his family responsibilities. The will of someone really insane is of course a nullity.

6. The bar to a complaint for irresponsibility is receipt of your quarter entitlement. It can come to you as heir, legatee, beneficiary under a trust, donee in contemplation of death, or--though here only ***--as donee inter vivos, or in any other way specified in imperial pronouncements.

7. Our references to the quarter share are to be taken in this way: whether there is one person in the category allowed to make the complaint of irresponsibility or more than one, it is enough to give a single quarter for proportionate division between them. That works out at one quarter of the intestate entitlement for each claimant.

Forced Heirship: the legal limitation of testamentary capacity, i.e., you cannot write a will leaving all your money to the cat.

Compulsory Share or Legitim: the minimum share that must go to the legitimate heirs.

Free Disposition Share: the part of the estate property that may be disposed of without limitation.

In our system, this is comparable to the spousal and the heirs' share in intestate succession. But, we generally have wide freedom of testation. The civil law system also places limitations upon inter vivos gifts, so that the testamentary limitations are not avoided by giving the property away prior to death.

In my Seminar on Civil Code Institutions, I discuss contemporary Civil Code forced heirship as follows:

VI. Inter-vivos gifts of real property (donación inter vivos, donation entre vifs, Schenkung unter Lebenden) and the open notarial will (testamento, testament) will illustrate the civilian tradition of forced-heirship

A. Donations

1. Introduction: Inter-vivos gifts of property. (donaciones, in Spanish, donations in French.) It is a "liberal act through which one person freely disposes of a thing in favor of another who accepts it."[5] For these to be valid, they must appear in a public notarial document.[6] The most important limitation on these is that a person may not receive by gift more than they would be entitled to by inheritance.[7]
2. Inheritance Under Roman Law: Merryman & Clark, pp. 251-253.
3. The concept of a liberal gift: Aubry & Rau, pp. 3-10 (§ 644 only)
4. Donations generally: Aubry & Rau, pp. 17-19 (§ 646 only); Planiol, pp. 209-219 (¶ 2511); pp. 232-233.
5. Code Articles cited in the Introduction above, found at the end of the materials on Donations, Forced Heirship and Wills.

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B. Forced Heirship

1. Introduction: The most important limitation on testamentary disposition are the forced-heirship rules that require the testator to leave most of the inheritance to his legal heirs,[8] and leaves only a small proportion of the inheritance, usually one third, for free disposition, i.e., to be left to whomever the testator wants, regardless of legal heirship, e.g., you can will your Bentley to your cat.[9] The only way to avoid forced heirship is to disinherit the legal heirs, which is very hard to do.[10]
2. Code Articles cited in the Introduction above, found at the end of the materials on Donations, Forced Heirship and Wills.

C. The Open Notarial Will

1. Introduction: The different types of wills. Non-holographic wills. Holographic (ológrafo in Spanish, olographe in French) wills are those that are written by the hand of the testator.[11] Non-holographic wills can be divided into open (abierto in Spanish, par acte public in French) or closed (cerrado in Spanish, mystique in French). Open wills must be prepared and certified by the notary and signed by the testator and witnesses (generally three, but the French code requires only two witnesses in addition to the notary or two subscribing notaries); the notary certifies the testator's capacity to subscribe the will.[12] A closed will may be prepared by the testator or by someone else at his request.[13] For it to be effective, the closed will must be placed in a sealed container that must be broken in order to extract the document. It must then be presented before a notary for preparation of a notarial document attesting to the existence of the will. During this act, in the presence of the notary and witnesses (generally five, but the French code requires only two and the Mexican code only three), the testator must state that the document is his last will and testament, the notary prepares the document describing the appearance of the sealed container. The testator, witnesses and the notary must sign the notarial document and certify the testator's testamentary capacity.[14] Concept (Introductory Materials)
2. Materials: Planiol, pp. 314-315; 325-330
3. Code Articles cited in the Introduction above, found at the end of the materials on Donations, Forced Heirship and Wills.

.

Footnotes:

5. C. Civ. P.R. art. 558 (translation mine). See also C. Civ. Esp. art. 618.

6. C. Civ. Fran. art. 931, C. Civ. P.R. art. 1273, C. Civ. Esp. art. 1327, C. Civ. Mex. art. 185

7. C. Civ. Fran. art. 931, C. Civ. P.R. art. 1273, C. Civ. Esp. art. 636, C. Civ. Mex. art. 185. See also the discussion of forced heirship supra.

8. In the Spanish and Latin American system, the part of the inheritance that must be left to the legal heirs is called the legítima (legitimate) in Spanish. C. Civ. Esp. art. 806, C. Civ. P.R. art. 735. It is divided into the legítima estricta, usually one third of the inheritance, which must be divided equally among all heirs and the mejora, usually one third of the inheritance, which the testator may use to "improve" one or more heirs, at the expense of the others. C. Civ. Esp. art. 823, C. Civ. P.R. art. 751. The French also have a mandatory "reserve" for heirs that must be followed in testamentary disposition; the reserve starts at one half of the inheritance when there is only one heir, and increases with the number of heirs, to 2/3 if there are two, 3/4 if there are three or more. C. Civ. Fran. arts. 913-914, see also Jean-Luc Aubert, Introduction au Droit 268-269 (1992). The Mexican Civil code has adopted a liberal social approach and eliminated forced heirship. See C. Civ. Mex. Motivos 25-27.

9. In France, whatever is left after the applicable reserve is called the quotité disponible, which may be freely disposed of by will. Jean-Luc Aubert, Introduction au Droit 269 (5th ed. 1992). A similar common law rule might be the imposition of limits charitable bequests.

10. Heirs are entitled to the legítima or reserve. C. Civ. Esp. art. 813, C. Civ. P.R. art. 741. Disinheriting. C. Civ. Esp. arts. 848-857, Civ. P.R. arts. 773-781.

11. C. Civ. Fran. art. 970 (Dalloz 1994), C. Civ. P.R. art. 627 (Equity 1984, supp. 1993), C. Civ. Esp. art. 688 (Civitas 1991), C. Civ. Mex. art. 1550 (Porrúa 1991).

12. C. Civ. Fran. art. 971-975, C. Civ. P.R. art. 644-655, C. Civ. Esp. art. 694-705, C. Civ. Mex. art. 1511-1520.

13. C. Civ. Fran. art. 976, C. Civ. P.R. art. 656, C. Civ. Esp. art. 706, C. Civ. Mex. art. 1521.

14. C. Civ. Fran. arts. 976-680, C. Civ. P.R. arts. 657-665, C. Civ. Esp. arts. 707-715, C. Civ. Mex. arts. 1522-1526.

A Medieval Code: The Partidas of Alfonso X “El Sabio”, 355-361

.

In class I pointed out that Seville was captured by Christian Spanish rulers on November 23, 1248 (by Ferdinand III, after a siege that began in July of 1247), which explains why Alfonso X was able to open a University there in 1254. However, the most influential doctors who drafted the Partidas came from Salamanca, a city northwest of Toledo and Madrid. Salamanca was within the kingdom of Leon. Nevertheless, Seville was a Moslem center of science and culture long before being re-taken by the Christians rulers.

The Partidas are a very complete code. They adopt the Roman vision of a father's power over children, and continue their legal treatment, which is comparable to that of chattel. Hence, the following Partida excerpts.

.

King Alfonso X

What Is Jus Commune?
The “Common Law” or more accurately, “Laws in Common of western Europe
(1) Roman Law
(2) Canon Law

Alfonso X and the Reconquista
Seville was captured by Christian Spanish rulers on November 23, 1248 (by Ferdinand III, after a siege that began in July of 1247), which explains why Alfonso X was able to open a University there in 1254.

Who Drafted the Partidas?
However, the most influential doctors who drafted the Partidas came from Salamanca, a city northwest of Toledo and Madrid. Salamanca was within the kingdom of Leon. Nevertheless, Seville was a Moslem center of science and culture long before being re-taken by the Christians rulers.

The Siete Partidas
The Partidas are a very complete code. They adopt the Roman vision of a father's power over children, and continue their legal treatment, which is comparable to that of chattel. Hence, the following Partida excerpts.

Learned Lawyers in Castille
Abogados
Procuradores
Solicitadores
Litigation was taken seriously by the crown. For example, the people who purchased the rights of Christopher Columbus under his agreements with the crown prevailed in litigation against the crown long after his death.

The Fourth Partida: Title XVII
*** Fathers have power and authority over their children, ***. First, because they are born of them; second, because they are to inherit their property. *** we intend to speak here of the authority which fathers have over them. We shall show what authority is; and in how many ways this word can be understood; how it should be established; and what force it has.
P. 355

LAW I: What the Authority Is Which a Father Has Over His Children
Patria potestas, in Latin, means, in Castilian, the authority which a father has over his children. This authority is a right ***; and they possess this authority over their children and grandchildren, and all others descended from them in the direct line who are born in lawful wedlock.
P. 356

LAW II: Over What Children a Father Does Not Possess … Authority
Children which men have by concubines, are called natural, ***, and such children are not under the control of their fathers, as legitimate children are; nor are children who are called in Latin incestuosi, which means those that men have by their female relatives within the fourth degree; or by women connected with them by affinity; or by those belonging to religious orders. ***
P. 356

LAW II: Over What Children a Father Does Not Possess … Authority
Persons of this kind are not worthy to be called children, because they are begotten in great sin. And although a father may have legitimate sons or grandsons, or great-grandsons who are descended from his sons, under his control, it is not understood by this that the mother can have authority over them, or any other relative on the mother’s side. ***
P. 356

LAW II: Over What Children a Father Does Not Possess … Authority
Moreover, we decree that children who are born of daughters should be under control of their fathers, and not under that of their grandfathers on the mother’s side....
P. 356

LAW V: Authority ... Over ... the Property Which Said Children Obtain
The earnings obtained by children, while under the control of their fathers, are divided into three different kinds. First, such as children earn by means of the property of their fathers, and gain of this kind is called in Latin profectitium peculium; for, although it is obtained in this way or on account of their fathers, it all belongs to their fathers who have control of it.
P. 357

LAW V: Authority ... Over ... the Property Which Said Children Obtain
Second, where anyone’s child earns something by the labor of its hands, by means of some trade or through any other knowledge which it may possess, or in any other manner; or it acquires a gift left to it by will, or through inheritance from its mother, or from some of its relatives, or by any other means; or where it finds a treasure or other property accidentally.
P. 357

LAW V: Authority ... Over ... the Property Which Said Children Obtain
Any profits made by a child, in any of these ways, and which are not derived from the property of its father or grandfather, should belong to the child who obtained them, and the usufruct of the same to the father during his lifetime, ... This kind of gain …is derived from an exterior source, and not through the property of the father;... the father must protect and preserve this adventitious property belonging to his son, during his whole life, ....
P. 357

LAW V: Authority ... Over ... the Property Which Said Children Obtain
The third kind of property and profit, is that called, in Latin, castrense vel quasi castrense peculium, which will be explained hereafter.
P. 357

LAW VI: [Castra]
Sons Can Do What They Please With Property Which Is Obtained in a Castle, or in the Army, or at Court, Even Though They May Be Under the Control of Their Father
P. 357

LAW VI: [Castra]
... three senses. The first and most common is every castle and stronghold surrounded by walls or other fortifications. The second is an army or fortified camp where many persons are assembled, and which is protected by defenses, and, for this reason is called, in Latin, castra. The third is the Court of the King, ..., where many persons are assembled, as around a lord who is a fortress and the bulwark of justice.
P. 357

LAW VI: [Castra]
... since men obtain profits of this kind through great hardship and danger, and because this is done in such noble places, they become absolutely the property of those who claim them, and enjoy greater exemptions than profits of other kinds; for owners of property of this description can dispose of it as they wish, and neither a father, nor a brother, nor any other relative ... has any right to it, or can interfere with it in any way....
P. 358

LAW VIII: For What Reasons a Father Can Sell or Pledge His Child
Where a father complains of great hunger, and is so poor that he cannot have recourse to anything else, he can then sell, or pledge his children in order to have something to buy food with. The reason why he can do this is the following, namely; since neither the father nor his child has any other means to escape death, it is proper that he should sell the latter, and make use of the price, so that neither of them may die.
P. 358

LAW VIII: For What Reasons a Father Can Sell or Pledge His Child
..., where a father is besieged in a castle, which he holds of his lord, and is so afflicted with hunger that he has nothing else to eat, he can eat his son without incurring reproach, rather than surrender the castle without the order of his lord. ... This is another right growing out of the authority which a father possesses over his sons who are under his control, which a mother does not have.
P. 358

LAW VIII: For What Reasons a Father Can Sell or Pledge His Child
This, however, can only be done in such a case where it is publicly understood that the father has no other means to avoid death, if he does not sell or pledge his son.
P. 358

LAW IX: How a Son ... Can Be Redeemed and Restored to Liberty
When a father sells his son through stress of hunger, as stated in the preceding law, and he himself pays for him the price for which he was sold, or someone else does this for him, the son should be restored to freedom.
P. 359

LAW IX: How a Son ... Can Be Redeemed and Restored to Liberty
But if the party, after he purchased him, should teach him some trade or science, on account of which he would be worth more than at the time when he bought him, he will not be required to surrender him for merely the price which he paid for him, but he should be given, in addition to said price, as much as reliable and intelligent men truly estimate that his value has been increased on account of what the party had afterwards taught him, or had expended out of his own property in order to have him taught.
P. 359

Question
Did the Partidas provide a process for emancipation like in Roman Law?
Answer: Yes, but by a simplified judicial process. In the Fourth Partida, Title XVIII, Law XV, there is a process for judicial emancipation of sons. Both father and son had to go before a judicial officer for an ordinary civil proceeding and declare that father was willing to emancipate and son was willing to accept it.

Patria Potestas in France, p. 360
By the later Empire, considerable limitations on this power had developed, both in relation to con_trol over the child’s person and to control over his property, and in this ameliorated form paternal po_wer was a settled institution in the pays de droit écrit until the Revolution.
It gave the father the right to custody of the child, to chastise him, and to enjoy the profits of his property; and it lasted du_ring the life of the father, unless the child was ex_pressly or impliedly emancipated.

Patria Potestas in France, p. 360
In the pays cou_tumiers, the father’s Mund (or “Mainbournie”) was based on a similar conception and entailed much the same consequences, though it differed considerably in point of detail.
In particular, it ceased upon at_tainment of majority; it could be exercised by the mother; and it did not entitle the father to a usufruct over the child’s property.