Legal Personality and Legal Status
(1) Natural and Juristic Persons
It is as well to begin with a definition of what we mean by a person, because the category of legal person goes beyond human beings. In law, a person is an entity capable of holding rights and being subject to obligations.
Most persons are, indeed, human beings. However, in modern law, we make a distinction between natural and juristic persons. The former are human beings and the latter are other entities recognised by the law as capable of holding rights and being subÂject to obligations. For example, in modern law, companies and partnerships are juristic persons. There was some recognition of this in Roman law, and variÂous types of corporate body were recognised as being capable of owning propÂerty, being beneficiaries under wills and suing or being sued in their own name, all separately from the individual human beings that were members of them.[372] Examples include private members' associations (collegia), self-governing commuÂnities (municipia), the state and, after the conversion to Christianity, churches.[373] In this chapter, however, the focus will be on natural persons.(2) The Elements of Legal Status
The Romans identified three elements to a person's legal status: liberty, citizenÂship and family.[374]
(a) Liberty
This first element, liberty, is concerned with what Gaius calls the ‘great distincÂtion in the law of persons... that all men are either free or slaves'.[375] As we shall see in Chapter 6, Roman society depended very greatly on slave labour, and slaves were incapable of acquiring rights or incurring obligations. Instead, they were considered to be property themselves, to be owned by others.
(b) Citizenship
The second element of personal status is citizenship. This carried with it various public law consequences, such as the right to vote and liability to taxation.
Unlike the situation in modern law, however, in which we consider citizenship to be almost entirely a matter for public law, with few private law consequences, in the ancient world the situation was quite different. The Romans made a distinction between the ius gentium (‘law of nations'), which applied to everyone, and the ius civile (‘civil law'), which was special to those with Roman citizenship rights.The Romans identified three private law citizenship rights. The first, commercium, was the right to enter into transactions falling into the ius civile. For example, certain methods of acquiring ownership fell within the ius civile, and so only those with the right of commercium could acquire in this way. Next, testamentifactio was the right to participate in the making of a will under Roman law. Finally, conubium was the right to enter into a Roman marriage. These rights were common to citizens, but sometimes they were granted to non-citizen communities or individuals as well.4 [376] The most common way of acquiring citizenship, however, was birth as a citiÂzen. The rule of the ius gentium was that a child followed its mother's status, and so the child of a citizen mother would itself be a citizen. Where, though, the parents were married in a Roman marriage,[377] the ius civile rule was that the child followed the father's status. Normally this would make little difference, as it was for the most part only Roman citizens who could enter a Roman marriage anyÂway. However, it could be that a Roman woman married a non-citizen who had conubium. This had the anomalous result that, where a Roman woman married a non-citizen who had conubium, the child would be a non-citizen (because it would follow the father's status, the marriage being a Roman one). Where, however, a Roman woman married a non-citizen without conubium, the child would be a citizen (because, the marriage not being a valid Roman one, the child would folÂlow the mother's status). Another important way of becoming a citizen related to freed slaves. Where a person was freed from slavery, he or she became a Roman citizen. We shall see more on this in Chapter 6.[379] (c) Family The third part of status was membership of a Roman family. We must make a distinction between two categories of people here. Some were sui iuris (‘of their own right') and some were alieni iuris· (‘of another's right'). The Roman family structure was highly patriarchal, in that the oldest man in the male line had legal authority (called patria potestas) over all of his descendants in the male line.[380] This person was called the paterfamilias (‘father of the family'), and in principle his authority lasted for his lifetime.[381] The legal capacity of alieni iuris persons was severely restricted and, for example, such a person could not own property.[382] In legal terms, the position of an alieni iuris person was therefore not altogether difÂferent from that of a slave, although of course such a person's social status was very different. (d) Capitis Deminutio (Status Loss) Loss of any of these three parts of a person's status was called capitis deminutio (‘status loss'). Reflecting the three parts of status, there were three forms of capitis deminutio, each different in degree.[383] The greatest of them was capitis deminutio maxima, which occurred when a person became a slave, and which necessarily extinguished that person's citizenship and family relationships. This was laid down as a punishment in various situations.[384] Next comes capitis deminutio media, also sometimes imposed as a punishment,[385] which was loss of citizenship. Such a person was not made a slave. However, a non-citizen could neither be subject to nor exercise patria potestas, and so lost membership of his or her family. Finally, capitis deminutio minima involved a person remaining a free citizen, but losing famÂily status. In practice, this was the most common form of capitis deminutio, and occurred whenever a person was adopted into a family or was emancipated (i.e. released from patria potestas). B.