CASE 213: Defining Tutelage

D. 26.1.1 pr.-1 (Paulus libro trigesimo octavo ad edictum)

(pr.) Tutela est, ut Servius definit, vis ac potestas in capite libero ad tuendum eum, qui propter aetatem sua sponte se defendere nequit, iure civili data ac permissa.

(Paul in the thirty-eighth book on the Edict)

(pr.) Tutelage, as Servius defines it, is a force and power over a free person, granted and allowed by the ius civile in order to protect someone who because of (young) age is incapable of self-protection if left on his own.

(1) Tutores are those who possess this force and power, deriving their name from their function. And so they are called tutores on the basis that they are “pro­tectors” (tuitores) and “defenders,” just as persons who look after temples are called “temple wardens.”

1.      Power and Trust. In the definition of tutelage that Paul takes from Servius, which element is dominant: the power held by a tutor or its legal function in safeguarding the interest of a minor-age child? Does the balance change in section 1? Paul, writing in the early third century A.D., takes the definition from his first-century B.C. predecessor; does this suggest that the juristic posi­tion on the purpose of tutelage had not undergone fundamental change over the period that separated the two jurists? Does Paul, or Servius for that mat­ter, recognize an independent interest for the tutor, perhaps as one who stands in for the family, especially with regard to the estate of the minor-age child, should, for instance, that child die before reaching adulthood?

2.      Etymology and Analogy. Paul's derivation of tutores from tuitores (protectors) is a rare example of a Roman etymology that is halfway convincing. How does it assist understanding of the tutor’s role? What of its amplification through defensores (defenders)? And what do you make of the analogy to the etymol­ogy of aeditui (temple wardens)?