THE FORM AND SCOPE OF THE BAN
Though authors have said that soldiers were “forbidden by law” to contract a marriage,1 the precise legal form of the soldiers’ marriage ban is unknown. No actual text (such as an imperial constitution or rescript or commentary in the Digest) survives; the closest to such a text are the dicta of the prefects of Egypt in Papyrus Cattaoui, which do not constitute law in themselves. Nor is it known in detail what ranks the marriage ban affected. This chapter will consider possible answers to these questions, though probably no conclusive answer is possible.
One might expect the marriage ban to be related somehow to the Augustan laws regulating the marriages of Roman civilians. The lex Iulia de maritandis ordinibus (18 B.C.) and the lex Papia Poppaea (A.D. 9)—usually conflated by the jurists as lex Iulia et Papia—sought to promote legitimate marriage and child-rearing, countering the perceived decline of the family and demographic decline (especially of the upper orders). A major aim of the lex Iulia et Papia was the reinforcement of the social hierarchy. Socially undesirable marriages were banned: all freeborn persons (ingenui/ae) were forbidden to marry socially degraded persons, such as prostitutes, procurers, actors, those convicted of adultery, and those convicted of capital crimes;2 senators and their descendants (in the male line to the third generation) were also forbidden to marry freedpersons.3 The lex Iulia et Papia
1 Campbell (1978), 153–66, at 153; 158.
2 Astolfi (1986), 55–56, 106–7. I do not call them infames here because infamia
does not appear to be an unitary concept in classical law. Kaser (1956), 220–75;
Gardner (1993), 110–154; McGinn, Prostitution (1998), 65–69.
3Tit. Ulp. 13.2; D. 23.2.44.pr quote the law. P. Meyer (1895), 22–24; Corbett
(1930), 31ff.; Kaser (1971), I.319; Falcão (1973); Volterra (1975) = Volterra, Scritti
giuridici 3 (1991), 265–70; Csillag (1976) exaggerates the decline of the family and