STATUS

In Roman law, the status of a Roman citizen was seen as having three elements: libertas, or liberty, in that he was not a slave; civitas, meaning that he was a Roman citizen; and familia, his status as a member of a Roman family.

As there were three elements of status, there were three forms of status loss. Status loss in the first degree (capitis deminutio maxima) meant loss of liberty (i.e. enslavement). This resulted in the loss of citizenship and family membership as well, as a slave could not be a citizen or a member of a Roman family.

Second-degree status loss (capitis deminutio media) was loss of civitas, which meant loss of familia (as one could be a member of a Roman family only if one was a citizen). In this case, though, libertas was unaffected, and the person remained free. Status loss of this kind could be imposed as a punish­ment in various situations.

Third-degree status loss (capitis deminutio minima) meant loss of familia, but with liberty and citizenship retained. This might happen due to eman­cipation by the head of the family, the paterfamilias. As we shall see, the legal structure of the Roman family was dominated by the paterfamilias, to a greater extent even than in other ancient legal systems. The authority of the paterfamilias over one of his descendants could be ended by a formal procedure called emancipation. This made the emancipated person legally independent, but at the cost of membership of the family, and consequent loss of succession rights. Emancipation could therefore be used as a punish­ment for a child, although it does not seem that this was normal. Often, an emancipated son would be given capital by the former paterfamilias to set him up in life and to compensate him for the loss of succession rights.

Of the three elements of status, the second, citizenship, tends to be seen more as a matter of public law rather than private law. It is not considered further by either Gaius or Justinian, and so will be passed over here, except to note that citizenship had greater private law consequences in Roman law than it does in modern law. For example, as we shall see in Chapter 5, certain ways of acquiring ownership of property were available only to citizens.

One omission from this treatment of status that may seem surprising is marriage. The reason for this omission is that, in classical Roman law, marriage was notable for its almost complete lack of legal consequences. Marriage is considered further below.