A Casebook on Roman Family Law

Front Cover
Oxford University Press, 2004 - History - 506 pages
The Roman household (familia) was in many respects dramatically different from the modern family. From the early Roman Empire (30 B.C. to about A.D. 250) there survive many legal sources that describe Roman households, often in the most intimate detail. The subject matter of these ancient sources includes marriage and divorce, the property aspects of marriage, the pattern of authority within households, the transmission of property between generations, and the supervision of Roman orphans.

This casebook presents 235 representative texts drawn largely from Roman legal sources, especially Justinian's Digest. These cases and the discussion questions that follow provide a good introduction to the basic legal problems associated with the ordinary families of Roman citizens. The arrangement of materials conveys to students an understanding of the basic rules of Roman family law while also providing them with the means to question these rules and explore the broader legal principles that underlie them.

Included cases invite the reader to wrestle with actual Roman legal problems, as well as to think about Roman solutions in relation to modern law. In the process, the reader should gain confidence in handling fundamental forms of legal thinking, which have persisted virtually unchanged from Roman times until the present.

This volume also contains a glossary of technical terms, biographies of the jurists, basic bibliographies of useful secondary literature, and a detailed introduction to the scholarly topics associated with Roman family law.

A course based on this casebook should be of interest to anyone who wishes to understand better Roman social history, either as part of a larger Classical Civilization curriculum or as a preparation for law school.
 

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Contents

Basic Concepts
11
Marriage
25
Ceremony?
54
Part B Further Aspects of the Marriage Process
63
Arranging a Betrothal
65
Agreement to Betrothal
67
Betrothal and Marriage
68
An Affront to the Fiancee
70
Part B Property and Obligations
238
Acquiring for the Pater Familias
239
Owning and Possessing Nothing
240
Through Whom Do We Acquire?
241
Ownership and Possession
244
The Fathers Knowledge
246
Acquiring a Debt
248
Obligating the Pater Familias
250

Jilting Your Intended
71
Marriage Dowry and Public Policy
72
Giving the Dowry
75
The Bride Gets Cold Feet
78
The Duty to Provide a Dowry
79
Appropriate Dowries
81
The Dowered Wife
83
The Burdens of Marriage
84
Appraising the Dowry
85
The Marital Regime
87
Manus Marriage
88
Filiae Loco
89
The Wifes Property
91
Acquisitions by a Wife in Manus
93
Can a Wife in Manus Divorce?
94
Relations between Spouses
95
Free Marriage The Principle of Noninterference
96
Sharing Status
97
Showing Reverence
99
An Affront to a Spouse
100
No Infamy
101
Procreation and Sexual Fidelity
103
An Unknown Son
104
Notice of Pregnancy
105
Protecting the Unborn Child
108
Custody of Childre n
109
Adultery and Marriage
110
Killing the Adulterer
112
But Not His Own Wife
114
Pandering
116
The Necessity of Divorce
118
A Double Standard?
120
The Property of the Spouses
121
Separate Estates
122
Managing His Wifes Property
124
What the Woman Brings with Her
125
Q Muciuss Presumption
127
Maintenance
128
No Gifts
130
A Fake Sale
133
Making Clothes
134
Exceptions
135
Severan Reforms
137
Administering the Dowry
139
Equitable Ownership?
140
Fruits and Capital Gains
143
A Dowry Allowance to the Wife
145
Tying the Dowry to the Wifes Maintenance
147
Diligence
149
Necessary Expenses
151
Statutory Limits on a Husbands Power
153
The End of Marriage
155
Captured
156
A Daughter Is Deported
158
Free Divorce
160
Divorce by Remarriage?
161
The Mental Element
163
Formal Requirements?
164
FreeForm Divorce
167
Amicable Divorce
169
A Wife Dies
170
Divorce and the Dowry
173
Retention on Moral Grounds
174
Retaining Necessary Expenses
177
Reducing the Dowry by Law
179
Useful Expenses
181
Opening a Quarry
183
Luxury Expenses
185
Gaius Gracchus and Licinias Dowry
186
Patria Potestas
189
Part A Powers
190
The Power of Life and Death
191
The Consilium I Almost the Entire Senate
193
The Consiium II The Quality of Mercy
196
A Hunting Accident?
199
Disciplining a Troublesome Son
202
An Offense Related to Public Pieta s
204
An Adulterous Daughter
205
Limitations on Killing a Daughter
207
A Son and the State
210
Consent to Marriage
211
Who Consents
212
Compelling a Childs Consent
214
A Fathers Consent
215
Impaired Consent Madness
218
Impaired Consent Captivity
219
Parental Consent and Public Policy
221
Divorce The Emperor Pius Intervenes
222
A Father Changes His Mind
223
Disposition of Gifts
224
Breaking Up Is Hard to Do
226
Custody and Maintenance
227
Stealing a Child
229
Mother versus Father
230
Deciding on Custody
231
SelfCustody
234
Maintenance of Relatives
235
The Uniqueness of the SoninPower
251
As Though He Were a Pater Familias
253
Suing the Son
254
The Fathers Order
255
Turned to the Fathers Benefit
256
Obtaining a Daughters Dowry
258
Business Managers
260
The Peculium
263
The Nature of the Fund
265
The Contents of a Peculium
267
Constituting a Peculium
269
Slave Women and Daughters
271
Acquiring Property
272
Free Administration
274
Gifts from a Peculium
277
Lending Money
278
Defending the Peculium
280
Computing the Balance
282
Deductions from the Peculium
285
The Deceitful Pater
288
Alternative Remedies
289
The Camp Peculium
290
Liability for Wrongful Acts
291
Noxal Actions
292
Liability and Status
294
Defending the Son
295
Wrongs against ChildreninPower
296
Creation and Termination
297
Paternal Power and Status
298
Presuming a Father
299
Periods of Gestation
300
Strange Bedfellows?
302
A Divorced Wife Takes Vengeance
303
Adrogation
304
The Adoption Process
306
Age Requirements
309
Family Ties
310
Adoption and Adrogation of Women
311
Adoption by Women
312
The Imitation of Nature
313
The Decision to Emancipate
315
Study Abroad
317
Emancipated versus Freed
318
The State Intervenes
319
Succession
321
Part A Intestate Succession
322
Rules of the lus Civile
323
An Unwilling Heir
326
The Praetors Rules
328
Emancipated and Disinherited
330
A Legal Puzzler
331
The Third Praetorian Class Unde Cognati
333
Illegitimate Children
334
SoninPower as Cognate
335
Husbands and Wives
337
Mothers Inherit from Children
339
Children Inherit from Mothers
340
Disqualifications
341
Part B Heirs and the Will
342
Freedom of Testation and Substitution
344
The Mancipatory Will
345
Common Substitution
347
Pupillary Substitution
348
The Causa Curiana
349
Whos on First?
351
Two Wills
352
Privileged Heirs
353
Defective Wills
354
Name Games
356
Disinheritance as an Advantage
358
Partial Disinheritance
359
Providing for Postumi
360
Postumi and the Unmarried Man
361
Subfecundity
363
Twins
365
The Challenge of the Emancipatus
367
Adopted Children
369
Passing Over Sui Heredes
371
The Son of an Adopted Child
373
Adopting a Son as a Grandson
375
Adopting a Grandson as a Son
376
Complaints about the Will
377
Duty and Sanity
378
Evil Stepmothers
379
A Mothers Mistake
381
Multiple Claims
383
Procedural Alternatives
384
Bequests to Nonheirs
386
Fideicommissa
404
Gifts Mortis Causa
413
Part A Children Young Adults Lunatics and Spendthrifts
424
Part B The Status of Women
448
Biographies of the Major Roman Jurists
471
Glossary of Technical Terms
479
Suggested Further Reading
489
Index of Sources
495
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About the author (2004)


Bruce W. Frier is Professor of Classics and Roman Law at the University of Michigan. Thomas A.J. McGinn is Associate Professor of Classical Studies at Vanderbilt University.