CASE 1: Freedom, Citizenship, and Household

D. 4.5.11 (Paulus libro secundo ad Sabinum)

Capitis deminutionis tria genera sunt, maxima media minima: tria enim sunt quae habemus, libertatem civitatem familiam.

There are three kinds of change for the worse in civil status: greatest, middle, and least, corresponding to the three things that we have: freedom, citizenship, and household (familia). When we lose all of these, that is, freedom and citizenship and household, this is the greatest change in status. But when we lose citizenship and retain freedom, this is the middle change in status. When both freedom and citizenship are retained and only the household is changed, clearly this is the least change in status.

1.      Change in Civil Status. This Case pertains to the Roman “law of persons” (ius personarum), an area of law defining the legal status of individuals for pur­poses of private law: for example, their capacity to own property, write wills, make contracts, bring private lawsuits, and so on. This law of personal status was highly developed in Rome, in large measure because the institution of slavery was widespread but also because, even among free persons residing in the Roman Empire, many were not Roman citizens until the nearly universal grant of Roman citizenship in A.D.

2.      “The Three Things That We Have.” The jurist Paul identifies the three basic constituents of civil status. For many purposes, clearly the most important are freedom (libertas) and citizenship (civitas). Still, private law lays equal, if not greater, emphasis on a persons position within a “household,” the Latin word for which is familia. If, as this and the following Case suggest, the Romans think of freedom as the most fundamental “divide” in determining the legal status of an individual, and of citizenship (in particular, Roman citizenship) as the next most fundamental, the third layer of status involves one's familia. Al­though our word “family” obviously derives from familia, the Latin word means something rather different, and that difference in meaning has conse­quences that deeply affect the Roman law of personal status. We usually think of a “family” as primarily established by kinship and coresidence; thus, a “nu­clear family” consists of parents and their children residing in the same house. The Roman familia is also influenced by kinship and coresidence, but its framework is much more emphatically determined by a nexus of legal rela­tionships, which are explored in the materials within this Casebook.

3. Omitted Factors. “The three things that we have” identify very significant as­pects of civil status, but this list omits other personal characteristics that have considerable impact. Foremost among these are age (see below, Case 6; also Chapter VA.1-2) and sex (Chapter VB). Generally speaking, adult males are accorded the highest civil status, and they also predominate in legal sources, reflecting, obviously, a society that is largely male dominated. But other fac­tors, such as sanity, can also influence civil status (Chapter VA.3). By con­trast, wealth and social status are not, in themselves, major determiners of civil status in classical Roman private law, though they gradually become im­portant in some areas of later classical law; by the second century A.D., for in­stance, barriers were erected to some marriages where the parties were of dif­ferent statuses (see Case 10). The legal weight that is attached to social stratification increases significantly in the late Empire.