BMCR 2020.05.07

La famiglia romana e i suoi volti: pagine scelte su diritto e persone in Roma antica

, La famiglia romana e i suoi volti: pagine scelte su diritto e persone in Roma antica. Torino: Giappichelli, 2014. x, 208 p.. ISBN9788834849750

The book consists of a couple of essays dealing with aspects of Roman families in their political, economic and social context with the focus on the law. The collection dates from 2014, the essays were written between 2003 and 2014. As Francesca Lamberti points out in the preface, she wishes to include literary and epigraphical texts to enlighten subjects of law. For didactic reasons, most of the original texts were translated into Italian.

The first two essays give a thematic survey of Roman law regulating family affairs and of questions connected with the legal abilities of children and adolescents, both taking historical developments into account. Essay number three examines a text concerning the necessary age for engagement and marriage. The fourth article is dedicated to the work de magia of Apuleius (2nd century A.D.), following the approach of using literary texts to deepen and widen the understanding of living conditions in Roman families. The last essay analyses a Senatus Consultum from 20 A.D., dealing with family law and the law of heritage. The fifth essay consists of a detailed study on the praesumptio Muciana and the alterations in interpreting and using this presumption. The author provides the reader with updated literature at the end of the texts. An index of sources serves as an additional key for a targeted use of the texts.

The first essay “La famiglia romana, fra ‘sfera politica’, quadro normativo e intimità privata. Tarda repubblica e principato” (p. 1-50), revised for the publication in 2014, gives insights into political aspects of the institutions of family law. It is written with regard to the development of institutions, evaluating juridical as well as literary sources. Lamberti discusses the structure of Roman families with the pater familias at the top and the patria potestas, which gives an extensive power over the members of the whole family. These rights were accompanied by an economic structure with the pater familias as the only owner of the family property. Lamberti explains limitations of this power already in the times of the XII tables. She mentions the options of becoming independent by emancipatio or by managing a peculium. The patria potestas remained dominant in the family law tradition, but it was pushed back for economic and social reasons. Being similar to the patria potestas, the manus gives a husband power over his wife and her property. It is a remarkable legal fact that already the XII tables opened the door for a marriage without manus. Lamberti explains the situation of women sui iuris, who need to have a tutor for affairs of great importance. The change and the decline of this institution are not only documented in legal but also in literary sources. The economic liberty of women increased significantly – including marriage and divorce. From an economic point of view, the dowry (dos) gained a new meaning for the self-defined life of women. The prohibition of donations between spouses is mentioned as an element of family law, which was formerly based on timocratic reasons. However, during the principate the reason changed.

The author discusses legal relationship, especially kinship, as a possibility for social arrangements. The political and familial reasons changed over time, but adoption and arrogation were used over the centuries. To marry was another way of establishing or consolidating relationships. Lamberti presents examples from the late republic and the principate with political or economic reasons. These two perspectives are also important to understand the law of heritage from the XII tables to the reforms during the republic followed by legal and imperial acts that improved the relations between a mother and her children. Lamberti finally deals with the legislation of Augustus concerning marriage law.

In retrospect, the author emphasises the fact that Roman family relationships were strongly influenced by legal traditions of early times. Still, the institutes gradually lost their original meaning.

It should be critically noticed that the requirements of marriage are not discussed, even not after the manus ceased to exist – in my view in the middle of the first century B.C. There are texts in the Digest that only postulate “consensus”, the most famous is Ulpian lb. 36 ad Sabinum D. 50,17,30, in contradiction to “concubitus”. This tradition can be traced back to Servius Sulpicius.[1]

The second essay “Su alcune distinzioni riguardo all’età dell’impubere nelle fonti giuridiche romane” (p. 51-89) deals with age limits, their determination in texts of different jurists and their function in the fields of contract law, possession and inheritance law. Special attention is given to the age limit of seven years as the end of “infantia”, which is, following the prevailing opinion, not confirmed in a technical way.[2] Looking for traces of this limit, Lamberti analyses texts that deal with the ability to talk in a legally accepted way, especially in stipulations, where some jurists add a criterion, namely the capacity of comprehending a situation. The jurists discussed these aspects in the context of stipulations regarding the maintenance of the property of the pupillus administered by a tutor, the access to an inheritance, the acquisition of possession and the age for an engagement. Lamberti illustrates the increasing relevance of subjective elements that play a role in the consideration of intellectual maturity.

The study of the texts is presented in a stimulating way, taking historical changes and the disputes of the Roman jurists into account. However, something is missing, especially reasons for the difference of the opinions. First, it should be noted that in ancient times young men at an age of seventeen acquired the toga virilis. In the 3rd century stoic philosophy is the background for defining legal capacity with the notion that a new spirit enters a person when sexual maturity is reached. Because of the younger age, the lex Laetoria established protection for young people up to the age of twenty-five. In the 1st century B.C., Servius Sulpicius chooses a new approach. He understands law as a social regime with clear regulations, including the fixation of age limits in an abstract way.[3] The different juristic concepts in the republic were passed on to the law schools of the principate. Thus traditional positions remain and sometimes are combined. This background is helpful when analysing the approach of Paulus in contrast to Ofilius and Nerva in D. 41,2,1,3 Paulus lb. 15 ad Sab. Lamberti arranges the differences in an evolutionary order (p. 76). However, the differences are caused by a contest of different positions. They date back to the late republic. Moreover, the discussed text is not only dealing with the question, what the possessor must be able to understand, but also with the aspect, what possession means. If one evaluates possession as a mere factum, even an infans is able to acquire it.

For the understanding of D. 23,1,14 Modestin lb. 4 diff., subject of the third essay “L’età per fidanzarsi nei libri differentiarum di Modestino” (p. 91-102), the different requirements concerning marriage and engagement are discussed. It should be noticed, that since the late republic an engagement only requires consensus. The use of the formal sponsio/stipulatio is no longer imperative. Julian (D. 23,1,11 lb. 16 dig., p. 97) is not the author, but incorporates this position of Servius in the Sabinian law school.

The fourth essay “Ricchezze e patrimoni femminili in Apuleio” (p. 103-132) is an impressive study on the aspects of civil law in the speech held and literarily composed by Apuleius in the 2nd century, where he rejects the accusation de magia. He was accused of having forced an affluent widow named Pudentilla into marriage by means of magic. In her analysis, Lamberti focuses on the living conditions in the province Africa, the economic and the familial situation of Pudentilla and the institutions of the law. With regard to Pudentilla’s life circumstances, relevant law institutions are the marriage without manus, a dowry, patria potestas of the father-in-law on her husband and the two sons, the patrimonial situation during the marriage and after the death of her husband, the consequences of the new wedding and the arrangement of good will by donations. Pudentilla’s status and behaviour is an example for the independence of a woman and her capacity to handle her own affairs.

The article „Suggestioni in tema di praesumptio Muciana“ (p. 133-180) deals with the assumption that a married woman received objects, which she has at her disposal, from her husband. The assumption dates back to Quintus Mucius. Lamberti begins the essay with a thorough analysis of the tradition of this praesumptio Muciana in the Digest – D. 24,1,51 Pomponius lb. 5 ad Qu. Muc. She examines the view that the rule has a procedural function and takes position for the opinion, which considers the rule to be useful in every form of marriage, may it be with or without manus. In the context of inheritance law, the rule’s application is favourable to the wife and the interpretation of the legacy. Furthermore, other aspects can be explained with regard to the social background and the wish to respect a wife as a person of honour, not taking gifts from third persons. This is also relevant when the wife is suspected of having stolen something from her husband, procedurally speaking in the case of an actio rerum amotarum. Moreover, Lamberti discusses the connection with the prohibition of gifts between spouses. The pushing back of this prohibition in the time of the Severian dynasty and the application of the praesumptio in this context, in Lamberti’s view, indicate a change in its function. It could be used in favour of the wife as well as in favour of the husband. The presumption never was a rule in favour of the creditors in antiquity. This is, following Lamberti, a younger development in the time of the ius commune.[4]

The last essay “Questioni aperte sul SC. de Cn. Pisone patre” (p. 181-198) is written to discuss some aspects of a Senatus Consultum from 20 A.D., which is epigraphically documented in bronze. It was found in the 1980s in the provincia Baetica. Lamberti uses the information about the property of Gnaeus Calpurnius Piso to analyse questions of family and inheritance law. Piso was accused de maiestate. He committed suicide and his property was auctioned, but the purchase price was distributed to his children by the way of the Senatus Consultum. Lamberti gives special attention to Calpurnia, who was supplied with three million sesterces as a peculium and one million as a potential dowry. Agreeing with other researchers but in contradiction with the editors of the Senatus Consultum, Lamberti argues that the mentioned Calpurnia is not a grandchild but the daughter of Piso.[5]

Summarising, it can be noted that this book enables the reader to gain a deep impression of Roman family law based on fruitful discussions of juridical and literary texts with a high sensibility for historical changes, for the context, in which the law exists, but also aware of the law tradition itself and its traces. This internal history of law with its philosophical influences can be even strengthened. The reading is stimulating and leads to further considerations.

[1] Okko Behrends, Custom and reason: Gender Equality and Difference in Classical Roman Law, in: Stephan Meder, Christoph-Eric Mecke (edd.), Family Law in Early Women’s Rights Debates, Köln Weimar, Wien 2013, p. 321-372, 332 ss.

[2] This is not convincing. D. 26,7,1,2 Ulpianus lb. 35 ad ed., treated p. 81 ff. is a document of this mark of seven years. See Okko Behrends, Die geistige Mitte des römischen Rechts, SZ 125 (2008), 25-107, 38 with other references.

[3] See for example Okko Behrends, cit. nt. 2, 39-41; Id., Le due giurisprudenze romane e le forme delle loro argomentazioni, INDEX 12 (1983-84), p. 189-225, 195-198 (=Scritti italiani, a cura di Cosimo Cascione, Napoli 2009, p. 59-95, 65-68).

[4] Sceptical in so far Jakob Fortunat Stagl in his review SZ 133 (2016), 547-549, 549.

[5] See in the same sense Johannes Platschek, Römisches Recht in Bronze – Der Senatsbeschluss de Cn. Pisone patre als Quelle des römischen Erb- und Familienrechts, Forum historiae iuris 2009, p. 1-15.