Family law concerns legal aspects of the domestic relationships between persons who are grouped together within a household understood as a social, political, and economic unit.

Usually these persons are close kin to one another: spouses, parents, children, siblings.

Plainly the family is of great legal interest because of the decisive role it has historically played in the raising and socialization of children and in the mutual economic support of its members.

In the modern world, the legal prototype of the family has long been the nu­clear family in its various stages, from the initial establishment of a household by a newly married couple, through the birth and rearing of their children, until the eventual dissolution of the family as children depart and the marriage ends through the death of one spouse or by divorce. During recent decades, however, legal atten­tion has increasingly turned to “nontraditional” families, especially those headed by unmarried single persons or unmarried couples, including same-sex couples. Fur­ther, the legal aspects of family relationships have become increasingly intertwined with numerous other branches of law, including not just the traditionally important areas of property law but also contract and tort law, statutory and administrative regulations, and even constitutional law.

But in the more extended view of history, it is surely unwise to regard any par­ticular family formation as authentically “traditional.” To be sure, the biological re­quirements for reproduction have, until quite recently, imposed some irreducible elements of pattern on families. But this biological substratum hardly explains by it­self the wide variety of manifestations that the family has had in historical cultures. The tacit presumptions of modern family life are so deeply instilled in all of us that at least initially it may be difficult to comprehend the range of meanings that past societies have given to such rudimentary concepts as marriage, parenting, kinship, household, coresidence, and so on. Continuities of vocabulary over long periods of time may, in fact, conceal enormous differences.

Roman legal sources introduce a system of family law that, on its face, diverges sharply from anything we know in the modern industrialized world. These sources describe a legal regime that prevailed during the first three centuries of the Roman Empire (roughly, 31 B.C. to A.D. 235), especially in Rome, the capital city of the Em­pire. Roman “families” (familiae, more accurately translated as “households”) were fundamental units of this legal regime. In some respects, it is true, the Roman household looks not entirely unlike many modern households. Indeed, literary sources describing Roman domestic life frequently induce in modern readers a sense of “familiarity” and recognition across two millennia of history: deeply affec­tive interactions, warmth and abiding love between spouses and between parents and children.

But the legal sources suggest another, rather darker perspective. The main cast of characters that will move through the Cases in this book is small and easily assembled:

•       the paterfamilias, male head of the household, sole owner of all property be­longing to the household, and endowed by law with considerable power over all his descendants through the male line no matter their age;

•       his wife, joined to him by astonishingly fragile bonds of matrimony but shar­ing with him neither in the control nor in the ultimate disposition of the household's wealth except as concerns her own property and her dowry (a fund that is, however, managed largely at his discretion so long as the mar­riage lasts);

•       and his descendants, captured within a household structure that allows them little true social or economic independence until they are finally freed from his mastery not by their own adulthood but by his death.

In short, the legal sources suggest a household regime that is described mainly through the exercise of power.

Two features of Roman family law may particularly surprise a contemporary viewer. First, this law reflects the values of a world still largely dominated by males, in which, therefore, the public role of adult women is considerably restricted by custom and by law (see especially Cases 228-235). Much of this male domination is emphatically reinforced within family law, where, in the centuries just before the classical era, the Romans had actually moved from an “archaic” model of marriage in which the wife was a full member of the household (albeit in principle subordi­nated to her husband, Cases 37-40) to a “classical” model in which the wife's pres­ence is legally so tenuous that she seems at times only to be tolerated as an un­avoidable prerequisite for the bearing and raising of children.

Second, the overriding concern of Roman family law is not with setting stan­dards for a family's life and internal governance but rather with the implications of family structure for the holding and disposition of property. That is, Roman family law is primarily directed toward economic issues. Spousal and child abuse, for ex­ample, can hardly have been altogether missing from the Roman world, but they are rarely even alluded to in Roman legal sources; and in general the Roman lawyers seem, if not blind, then at least myopic when it comes to the possibility that the pater familias might misuse his considerable power over people and things. In truth, for every juristic ruling on child custody or parental discipline, there are a hundred or more rulings on dowry. Even though, in recent decades, the theory and practice of modern American family law have been gradually shifting from moral to economic issues, Roman law still remains extreme from our vantage point.

From the states perspective, Roman family law is generally antipaternalistic, cautious about intruding on the autonomy that in principle surrounds the house­hold.

The sum of these various changes is substantial but not huge, more a matter of amelioration than of fundamental transformation. Softening the details was perhaps less a matter of imperial benevolence than an imperative in an era when Roman cit­izenship was gradually being extended from its original Italian core to the upper classes of the provinces, and finally (in A.D. 212) to almost the entire free population of the Empire. In this process, perhaps as many as fifty million persons became sub­ject to Roman private law. To large numbers of these newly enfranchised peoples, the institutions of Roman family law doubtless seemed as exotic as they do to us today; and the subtle but unremitting clamor for revision and reform is not difficult to detect beneath the prosaic surface of legal sources.

But what did not change was the iron core of the law. In order to understand Roman family law more fully, therefore, we need to broaden our focus still further and see this law in relation to its historical context, particularly its social and eco­nomic context.

There is today no real doubt that resources were chronically maldistributed in the Roman Empire: a tiny urbanized elite, essentially a governing class, enjoyed a vastly disproportionate share of the Empires income and wealth. Although Roman private law itself was nominally egalitarian and seldom based upon overt differenti­ations of social class and wealth, and although the law is likely to have had some im­pact on the lives of persons well below the ranks of the elite, nonetheless there are solid reasons to believe that the outlook, values, and interests of the upper classes (from whose ranks the Roman jurists were overwhelmingly drawn) were crucially important in shaping both the overall texture and the specific rules of classical Roman family law. Above all, this elite enjoyed easy access to law; and the wealth and privilege in which the elite traded were far more readily susceptible to the ap­plication of legal norms.

Directly or indirectly, the Roman elite drew much of its income from landed in­vestments and much of its prestige from tradition, and accordingly it laid great stress on familial continuity from generation to generation. The elite of the Roman Empire had, by modern or even premodern standards, little enthusiasm for risky entrepreneurial activities in the realm of manufacturing and commerce, and entre­preneurship was therefore undervalued as a social asset. On the other hand, strate­gies of succession—the conveyance of family wealth to succeeding generations— were integral to Roman family law to a far greater degree than is true of modern family law.

In short, then, Roman family law was designed not only for a world much dif­ferent from our own but also for a world in which law may have operated differently than it does today. There are two further aspects of this world that bear directly on the Roman household. First, such evidence as we have (it is poor in quality) strongly suggests that even upper-class Romans had to confront very high levels of mortality, a demographic regime in which the real possibility of imminent death was more or less a constant. Because of high infant mortality, more than half of newborn children may have died before their fifth birthday; and those who sur­vived still faced continuous perils of disease or deadly accident. All this is certain to have significantly influenced the landscape within which family law was articu­lated. To give just one obvious example, it cannot have been at all unusual for Roman children to be orphaned at a very tender age, so that for a great many Ro­mans the awesome power of the pater familias ended well before they reached full adulthood. Furthermore, large numbers of orphans meant that legal institutions of guardianship (Cases 213-222) had considerable social importance.

Second, any account of Roman family law would be imperfect if it ignored the constant presence, within upper-class households, of fairly large numbers of slaves, who, in the urban settings often presupposed by the Roman jurists, performed many domestic services. A good, if perhaps rather horrifying, example is Case 56, a legal problem resulting from the amalgamation of a husbands and a wife's slaves within a single dwelling. But Roman masters also commonly freed their urban slaves, which led to fresh problems; for instance, an ex-master might wish to marry his freedwoman (Case 14). The presence of slaves is not always obvious in the sources; still, it repays the effort to bear their presence in mind, since slaves were a major capital asset in the Roman world. Further, slaves are often more subtly pres­ent in the consciousness of the jurists, as a basis of comparison when considering the legal position of children, for instance; the sources on the peculium (Cases 125-128) illustrate this point nicely. Unfortunately, however, Roman slave law is extremely intricate, and we therefore considered it impossible to deal with this sub­ject more than obliquely within the present Casebook.

During the past three decades, the Roman family has been the subject of many stimulating and very fruitful scholarly studies, some of which we refer to in the in­troductions to the chapters; see also the concise bibliography at the end of this vol­ume. It is true that the field had long been rather neglected, so that it was ripe for so­phisticated new approaches. But its revival is also related to a larger scholarly debate among historians about the nature of the premodern family.

Briefly, the problem is this. We have reliable historical evidence that in crucial respects the European family underwent a major transformation during the period from approximately 1750 to 1900: a transformation, let us say, from the family's premodern to its modern form, which then spread to European colonies and is today rapidly becoming worldwide. A demographic key to this transformation is that, in the general population of Europe, married couples came to regard procre­ation as a matter for their own personal determination, something they could regu­late for themselves without overzealous regard for the moral strictures of tradition or of their governments or churches. The final consequence of this change in atti­tude was a drastic break from previous patterns of behavior: newly married couples now tended to think first in terms of how many children they themselves wished to have, and to stop reproducing when they felt they had achieved that number; fur­ther, they increasingly concentrated childbirth within the first five or ten years of marriage. These developments lie at the core of what is called the fertility transition, a dramatic overall lowering of the fertility rates that had previously prevailed. There is no firm evidence that any earlier general population (including the population of the Roman Empire) had ever behaved in this way.

The transfer of basic reproductive decisions to the forum of marital conscience is one of the most significant events in modern social history, an event with conse­quences, particularly in the realm of female empowerment, that even today have not yet been completely worked out. So much is not in serious dispute. But because this change in the general populations behavior transpired “subhistorically,” be­neath the level of most historical records, it is hard to understand exactly why and how it occurred.

One powerful attempt to explain the change has underscored what may be thought of as an “ideological” transformation in the European concept of the family, a transformation that hypothetically occurred more or less simultaneously with the observed change in reproductive behavior. Many distinguished social historians, in­cluding Philippe Aries and Lawrence Stone, have vigorously championed this view, and it now enjoys widespread scholarly approval despite stout resistance from other historians, including Stephen Ozment.

According to the prevailing viewpoint, the premodern European family (in Oz- ment's words) “adopted a rigid internal organization for its own protection—one that is said to have been hostile to democracy, the emancipation of women, and the gratification of children.” The premodern family was “an impersonal household, ruled over by an imperious patriarch to whom all members were subordinate and subject.” When this model of the premodern family is caricatured in such stark terms, its contrast with “sentimental” models of modern family life is apparent. Oz- ment's critique of this model, however, tends to stress the continuity of European family life from premodern to modern and in particular any indications that pre­modern families were by no means so austere and autocratic as historians have commonly asserted.

The deeper issue in this debate is whether we should think of “the family” as an inaccurate covering name for what is really a series of distinct social formations over time or whether we should view it as a single and essentially continuous social in­stitution that has only mutated in some of its outward and inward manifestations. Historical questions of this type are hard to answer in large part because so much can depend on the character of the particular sources that historians are interrogat­ing. Nonetheless, on the whole the nature of family life does seem to have altered appreciably with the onset of the modern period. This does not mean, of course, that affective relationships were missing from premodern families, or even that they could not be conspicuous to some observers. Perhaps it is more helpful to think of the historical “family” as mixing numerous social ingredients, of which some that were once dominant have now receded in significance, while others have come to the fore; but such a variation in ingredients may quite possibly have led to institu­tional formations that are paradigmatically distinct and therefore historically in­commensurable.

Almost inevitably, in any case, the debate about the European family has lapped over into scholarly discussions of the Roman family. Some ancient historians (most notably Richard Saller and Suzanne Dixon) have recently sought to portray the Roman family, and particularly the upper-class family, in softer colors than his­torians have traditionally used: still hardly “modern,” to be sure, but not nearly so unremittingly harsh. Other historians have been more hesitant in departing from the traditional model. Almost every conceivable type of evidence has been brought into this discussion, from literary and subliterary texts to artistic representations and archaeological data. But beyond all doubt, Roman law has remained the chief sticking point.

On any fair accounting, so we believe, the legal sources for family law are a for­midable impediment for historians wishing to reconstruct the Roman family on modernist lines. It should be apparent, for instance, that the prevailing scholarly view of the premodern European family bears an uncanny resemblance to the Roman family as it is depicted in the rulings of the Roman jurists. Nor is this re­semblance entirely coincidental, since the premodern period was precisely the high point of Roman law's direct influence on European law and institutions. The web of legal logic that the Roman jurists wove around the family was so intricate and hard­ened that subsequent centuries found it difficult to break free.

Still, certain promising avenues of research may yet permit us to circumvent the barrier of Roman law. Even if we leave to one side the obvious open texture of its legal rules, it remains today quite controversial how deeply Roman private law pen­etrated into the social structure of the Roman Empire. This is a question you should continually think about as you read the materials in this Casebook, but it is worth the effort to set down here some preliminary observations and concerns.

First, it is hard for a modern reader to escape the feeling that the Roman insti­tution of marriage was far too weak to be socially viable. Case 76, for instance, de­scribes an actual trial during the late Republic. The trial concerned a man who left his pregnant wife in a province of the Roman Empire and moved to Rome, where, without informing his first wife, he married another woman, who bore him a sec­ond child. Was the second child legitimate? This depends, in turn, on whether his second marriage could be enough in itself to constitute an effective divorce from his first wife—that is, whether, in certain circumstances, remarriage by itself, with nothing further, brings about divorce. How can we deal with a legal system in which divorce might be achieved so easily, on the initiative of either spouse at any time, without direct notice to or control by the state, and perhaps even without no­tice to an affected spouse? Should we look for countervailing social factors that might have acted to promote marital stability or for indirect legal obstacles to di­vorce (such as dowry encumbrances, Cases 81-89)? Or are we better advised to ac­cept the possibility that free divorce may not be such a threat to social order as many of us have thought?

Second, patriapotestas, the enormous power over descendants that Roman law vested in a paterfamilias, remains an enigma. For instance, in Case 93, the Emperor Alexander Severus apparently tells a man named Artemidorus that if he encounters difficulty in applying corporal punishment to his adult son, he can ask for assis­tance from a magistrate; and other legal sources suggest that thrashing adult chil­dren was a legally acceptable, if not a regular, part of a fathers exercise of parental dominion. However, after carefully surveying the nonlegal sources on this issue, Richard Saller concludes: “[T]he law granting the paterfamilias powers of nearly

limitless coercion over his children is an inadequate guide to Roman family rela­tions.... [T]here is no strong evidence for holding up Roman fathers as a paradigm of brutal severity. In all likelihood the Romans, in drawing the line between punish­ment and abuse, accepted more severe physical punishment than we would today, but no more severe than later Europeans.” But if this view is correct (as it certainly appears to be), then how should we read the legal sources on patria potestas? Was such a weapon ever forged to lie rusting in its sheath? Was the mere potential of vi­olence sufficient for Roman fathers? Or is it conceivable that some defect clouds the vision of the nonlegal sources?

Lurking behind these two problems is a larger and considerably more impor­tant question. Roman family law was constructed around a certain mental image of what a “typical” Roman household was like. The jurists did try to define familia (see Case 4), but in general, and quite wisely, they put little trust in such definitions; for, as one jurist famously remarked (Javolenus, D. 50.17.202), “In the civil law every definition is dangerous, since it is rare that one cannot be undermined.” In general, the Roman jurists allowed their conception of the household and its operation to emerge implicitly from their rules, and so one must constantly be on the alert for clues to the jurists' broader understanding.

But one should also recognize that even this legal conception was contrived for a specific and rather constricted purpose: to permit the development and applica­tion of intellectually coherent legal rules. Therefore, it is at best only a highly styl­ized representation of what was inevitably a far more complex social reality, some traces of which also occasionally peep through in the legal sources. Be on the watch for these layers of historical meaning and particularly for any indications that the ju­rists were evaluating and revising their conceptions and rules on the basis of how well they performed socially Social performance is the key. Roman law was not everywhere successful, but then neither is any legal system. In your thinking about this body of law, it is critical to develop a more general sense for when law succeeds in achieving its ends and when it fails and, in either case, why.

One final caution: Ambiguity and misdirection are common features of law and legal thinking, and Roman law is no exception. In Case 177, the jurist Paul nails down a subtle legal point by casually observing that, after all, Roman fathers had once been permitted to kill their own children. Should Paul's words be understood as nostalgia or as irony?