A Casebook on Roman Family Law

A Casebook on Roman Family Law

A Casebook on Roman Family Law

A Casebook on Roman Family Law


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.


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 nonetheless 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 excerpts (totaling over eight hundred thousand words) that derive mainly from classical 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 Justinian, 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 assemblies especially during the early Empire; and decrees of the Senate (senatusconsulta, 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 numerous 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 writings 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 themselves. 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 . . .

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