A Casebook on Roman Family Law Bruce W. Frier Thomas A.J. McGinn OXFORD UNIVERSITY PRESS A CASEBOOK ON Roman Family Law AMERICAN PHILOLOGICAL ASSOCIATION CLASSICAL RESOURCES SERIES Joel Lidov, Series Editor NUMBER 5 A CASEBOOK ON ROMAN FAMILY LAW Bruce W. Frier and Thomas A.J. McGinn A CASEBOOK ON Roman Family Law Bruce W. Frier and Thomas A.J. McGinn 3 2004 3 Oxford New York Auckland Bangkok Buenos Aires Cape Town Chennai Dar es Salaam Delhi Hong Kong Istanbul Karachi Kolkata Kuala Lumpur Madrid Melbourne Mexico City Mumbai Nairobi São Paulo Shanghai Taipei Tokyo Toronto Copyright © 2004 by The American Philological Association Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 www.oup.com Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Frier, Bruce W., 1943– A casebook on Roman family law / Bruce W. Frier and Thomas A.J. McGinn p. cm.—(Classical resources series / American Philological Association ; no. 5) Includes bibliographical references and index. ISBN 0-19-516185-8; 0-19-516186-6 (pbk.) 1. Domestic relations (Roman law) I. McGinn, Thomas A. II. Title. III. Classical resources series ; no. 5. KJA2227 .F75 2003 346.45'632015—dc21 2002013989 987654321 Printed in the United States of America on acid-free paper Preface This Casebook introduces the area of Roman law governing the most personal and urgent problems that free Romans normally confronted: the marital relationship, the power of fathers over their children, and the devolution of property within the family. This area of law is interesting even today because, although many parts of it seem at least generally familiar, Roman family law was organized and developed on lines that are radically, and at times almost breathtakingly, different from any modern legal system. On one level, then, students are invited to think about a set of legal rules that are unlike anything they have ever seen before but that nonethe- less are distinctly “legal” in a way that any modern lawyer can understand; but on another level students are also encouraged to think about how these rules are likely to have affected the actual lives of Romans. A casebook relies on direct use of primary sources in order to convey a clear understanding of what legal sources are like and how lawyers work. For Roman law, the primary sources are above all the writings of the early imperial jurists. Almost all their writings date to what is commonly called the classical period of Roman law, from approximately 31 B.C. to A.D. 235. Justinian’s Digest, promulgated at Constantinople in A.D. 533, collects more than nine thousand lightly edited ex- cerpts (totaling over eight hundred thousand words) that derive mainly from clas- sical juristic writings. The excerpts vary in length from a few words to several pages. Modern knowledge of classical Roman law rests chiefly on the Digest and a few other sources: most prominent among them being the Institutes of Gaius, an elementary textbook written about A.D. 160, which is the sole work of the classical jurists that has survived to us more or less intact; and also the Institutes of Justin- ian, an elementary textbook loosely based on Gaius. Roman family law was also the subject of considerable legislation, which is frequently referred to and interpreted by the jurists. The most important of this legislation takes the form of laws (leges) passed by the Roman legislative assem- blies especially during the early Empire; and decrees of the Senate (senatuscon- sulta, abbreviated SC) passed by the Roman Senate, usually after they had been moved by the emperor or his agent. A large amount of imperial lawmaking also takes the form of rescripts, answers to questions of law addressed by officials or private citizens to the emperor. These rescripts, which become increasingly nu- merous starting in the second century A.D., are somewhat haphazardly collected, but many can be found in the Codex of Justinian, promulgated at Constantinople in A.D. 534. For the most part, however, the 235 Cases in this book derive from the writ- ings of preclassical and classical jurists. The Roman jurists were not judges in our sense, nor were they like modern lawyers or law professors. They were, instead, a tiny elite of legal professionals who were charged with conserving and developing the law, especially the private law that Romans used in lawsuits between them- selves. Although the Cases often describe fact situations at least loosely drawn from real life, they are, with very few exceptions, not judicial opinions on real legal cases. Rather, the jurists write about hypothetical but realistic situations as part of their effort to discuss and develop law. The jurists’ writings were originally in- tended, in the main, for reading by their fellow jurists or other skilled legal schol- ars, not by laypersons. However, the legal rules that the jurists created through their writings were then applied directly to actual cases that arose in Roman courts, in order to settle questions of law. During the classical period of Roman law, private lawsuits in the city of Rome were normally brought in the court of the urban praetor, a magistrate of the Roman state. So that potential plaintiffs could know which lawsuits he was willing to grant, the praetor, at the start of his year in office, issued an Edict listing all the causes of action that he recognized as available. The praetor used his Edict both to implement existing law and to create new actions. By the classical period, the con- tents of this Edict were usually carried over mechanically from praetor to praetor, although changes remained possible until the Edict was given its final form in the early second century A.D. Actual trials took place in two stages. A plaintiff first came before the praetor and asked him to grant a lawsuit. If the plaintiff stated an acceptable cause of ac- tion, the praetor granted a trial and assigned the case for decision by a “judge” (iudex), who was normally a layperson lacking any deep familiarity with law. The praetor and the two parties to the lawsuit also prepared a special formula; this for- mula (which gives its name to Roman “formulary procedure”) appointed the iudex, instructed him on the general nature of the dispute, and ordered him to decide it. During the second stage of the trial, the iudex listened to arguments from advo- cates for both sides and then decided the outcome of the case in accordance with the formula. Normally, this verdict could not be appealed or reviewed. When important questions of law arose either before the praetor or during the actual trial before the iudex, they were usually settled through reference to the opinions of jurists. Thus, the Roman jurists, although they were not formally a part of the judicial system, played a pivotal role in determining law within Roman courts. The “Case-Law” Approach In this Casebook, students are exposed to the working methods of the Roman ju- rists, to their internal controversies, and to the principles and values that underlay their law. One important area, family law, has been chosen to illustrate these points. The basic framework of Roman family law derives from two sources: statutes (legis- lation in various forms) and the Edict of the urban praetor. Some Cases involve ju- ristic interpretation of these fundamental sources. But in most Cases the jurists range well beyond the basic framework into broader legal issues associated with the life of the family; and most of Roman family law is in fact the jurists’ own creation, not the result of straightforward statutory or edictal interpretation. vi Preface At our respective universities, we use this Casebook as the basic text for a se- mester-long undergraduate course in Roman law. The course is organized around classroom discussion of the individual Cases—usually about four to six Cases each hour. By delving into the Cases, students develop their own ability to examine legal rules and to assess them critically. Over a semester, the improvement in their legal skills is usually remarkable. Further, all law is to a large extent a seamless cloth, and this is no less true of Roman law; so students soon pick up a good deal of Roman law in areas besides family law, as well as some of the rules in their own legal system. In order to encourage a deeper understanding of the Cases, we require stu- dents to purchase a general handbook on Roman law (e.g., Barry Nicholas, An In- troduction to Roman Law, 1962). We also recommend that they purchase Edward Levi’s An Introduction to Legal Reasoning (1949) or some comparable book intro- ducing the process of legal reasoning. Students who not only participate in class- room discussion but also read these assigned books come away from the course with a good grasp of the nature of legal thinking in general, as well as an apprecia- tion of the general content of both Roman and modern family law. This Casebook is modeled after the format of Herbert Hausmaninger’s highly successful German casebooks on Roman contract and property law, as well as Bruce Frier’s Casebook on the Roman Law of Delict (1989). To our mind, this for- mat offers the best available method to communicate to modern students the con- tent and character of classical Roman law.