This brief chapter introduces some central legal concepts that underlie Roman family law. Most of them are related to the legal idea of “family” itself.
As it turns out, the Latin word familia is usually better translated into English as “household” rather than “family”—and even this translation is none too accurate.
It is easier, perhaps, to begin with the importance that Roman private law attached to the familia as the basic building block of the Roman state, since, metaphorically, the familia is often understood as the state in miniature. It has a form of governance that is theoretically vested in one person, a “head of the household” (pater familias, literally “father of the familia”). This person has extensive and virtually exclusive power over all property belonging to the household, including any slaves. But his power also extends to controlling the lives of those of his descendants related to him through males (sons and daughters, grandchildren through sons, and so on), that is, through what the Romans call an agnatic relationship; and in principle the power of the pater familias continues no matter how old these descendants are, unless the pater himself has released them from his power.Further, the power of the paterfamilias could be exercised over other free persons, including adopted children and also, in the archaic form of Roman marriage, his wife; but in the standard classical form of marriage the wife remained under the power of her own father (if he was still alive), and despite her marriage, she did not fall under her husband's power.
The Roman familia was thus, at least in legal theory, a little monarchy, with strict rules as to who was subject to the monarch's power and who was not. This monarchy dissipated only on the death of a paterfamilias, to be replaced by new familiae governed by the father's offspring.
All this takes some getting used to, since it is so alien to modern understandings of the family.
The work of the Roman jurists, as they developed these basic concepts during the first three centuries of the Roman Empire (roughly, 31 B.C. to A.D. 235), is intricate and fascinating, but it must always be appreciated as a set of primarily legal institutions, not as an anthropological description of actual Roman family life—which, as it turns out, was in many ways not all that different from modern family life. The relationship of legal abstractions to real life is a fascinating subject in its own right, but one that is not directly treated in the present book. However, it is important, in reading the pages that follow, to bear in mind that the real-world functioning of social institutions is often not directly determined by law, even though law may linger persistently in the background of daily life.The following concepts are introduced in this chapter: freedom as contrasted with slavery; Roman citizenship; the Roman familia (household); the pater familias; agnatic relationship; and, among free persons, the distinction between full legal capacity (sui iuris status) and dependency (alieni iuris status). Don't move on until you have mastered these concepts, since all of them will be important in the chapters that follow.
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