CASE 152: Adoption and Adrogation of Women
Gaius, Institutiones 1.101
Item per populum feminae non adoptantur, nam id magis placuit; apud praetorem vero vel in provinciis apud proconsulem legatumve etiam feminae solent adoptari.
(Gaius in the first book of his Institutes)
Likewise, women are not adopted through the comitial procedure (i.e., they are not adrogated), since this is the majority opinion. By contrast, women too are typically adopted in the procedure held before the praetor (at Rome) or in the provinces before the governor or his representative.
1. Adopting Women. As the text suggests, adoption of women was legally unproblematic, though attested cases are rare. Were there any disincentives to adopting women?
2. Adrogation. Adrogation was a different matter, as Gaius demonstrates. Since the extinction of a line of descent was not an issue (legally speaking, this was going to happen anyway), what was the difficulty here? Aulus Gellius (Noctes Atticae 5.19.10) explains their exclusion on the ground that they could not participate in any voting assembly. Given the demise of such institutions under the Principate, the reason seems anachronistic at best. What other rea- son(s), specific to the regime for adrogation, might have influenced the majority view in Gaius's day? Is adrogations function of continuing the male line and family name relevant?
3. Dissenting View. Gaius indicates that there was a minority view concerning adrogation of women; what would that view be, and how could it be justified? At D. 1.7.21, Gaius says: “For women as well can be adrogated by a rescript of the emperor.” Is he necessarily contradicting himself?