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European family history and Roman law

Published online by Cambridge University Press:  29 January 2009

Richard Saller
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Type
Research Article
Information
Continuity and Change , Volume 6 , Issue 3 , December 1991 , pp. 335 - 346
Copyright
Copyright © Cambridge University Press 1991

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References

Endnotes

1 Goody, J., The oriental, the ancient and the primitive: systems of marriage and the family in the pre-industrial societies of Eurasia (Cambridge, 1990)CrossRefGoogle Scholar; Herlihy, D., Medieval households (Cambridge, Mass., 1985)Google Scholar; Flandrin, J.-L., Families informer times. Kinship, household and sexuality, transl. Southern, R. (Cambridge, 1979)Google Scholar; Macfarlane, A., Marriage and love in England: models of reproduction, 1300–1840 (Oxford, 1986)Google Scholar and ‘Demographic structures and cultural regions in Europe’, Cambridge Anthropology 6 (1980), 1–17.Google Scholar

2 Goody, The development of family and marriage in Europe (Cambridge, 1983), 4f. and passim.

3 Goody, The oriental, the ancient and the primitive, 18.

4 Goody, Development of family and marriage, 55.

5 Herlihy, Medieval households, 3, 7.

6 Digest 50, 16, 196.

7 On the complex legal implications of unions between freeborn and slave as a result of the senatus consultum Claudianum and the differences between the legal rules and actual practice, see Weaver, P. R. C., ‘The Status Of Children Of Mixed Marriages’, in Rawson, B., ed., The family in Ancient Rome: new perspectives (London, 1986), 145–69.Google Scholar

8 Flandrin, Families informer times, 112, 125; Macfarlane, Marriage and love in England, 338f.; ‘Demographic structures and cultural regions in Europe’, 10.

9 Studies in historiography (London, 1966), 242.Google Scholar

10 Crook, J. A., ‘Patria potestas’, Classical Quarterly 17 (1967), 113–22.CrossRefGoogle Scholar

11 Crook, J. A., Law and life of Rome (London, 1967), 99–104Google Scholar; Rawson, B., ‘Family life among the lower classes at Rome in the first two centuries of the Empire’, Classical Philology 61 (1966), 71–83.CrossRefGoogle Scholar

12 Saller, R. P. and Shaw, B. D., ‘Tombstones and Roman family relations in the Principate: civilians, soldiers and slaves’, Journal of Roman Studies 74 (1984), 124–56.CrossRefGoogle Scholar

13 Rawson, B., ‘Roman concubinage and other de facto marriages’, Transactions of the American Philological Association 104 (1974), 279–305CrossRefGoogle Scholar; Treggiari, S., ‘Concubinae’, Papers of the British School at Rome 49 (1981), 59–81.CrossRefGoogle Scholar

14 Flory, M. B., ‘Family in familia: kinship and community in slavery’, American Journal of Ancient History 3 (1978), 78–95.Google Scholar

15 Saller, R. P., ‘Pietas, obligation and authority in the Roman family’, in Alte Geschichte and Wissenschaftsgeschichte. Festschrift für Karl Christ (Darmstadt, 1988), 402.Google Scholar

16 Fragment 12, ‘On sexual indulgence’ (translation by Lutz, C., Yale Classical Studies 10 [1947], 85).Google Scholar

17 Saller and Shaw, ‘Tombstones and Roman family relations’.

18 Herlihy, Medieval households, ch. 1, appears to have an odd image of Roman imperial society comprising the élite, on the one hand, and slaves, on the other. In fact, the bulk of provincials were neither: they were free, humble peasants who married and formed families according to local custom. It is far from clear what changes the Church imposed on the family lives of these people.

19 Wightman, E., ‘Peasants and potentates: an investigation of social structure and land tenure in Roman Gaul’, American Journal of Ancient History 2 (1977), 97–128.Google Scholar

20 Sheehan, M., ‘Sexuality, marriage, celibacy, and the family in central and northern Italy’Google Scholar, in D. I. Kertzer and Saller, R. P., The family in Italy from antiquity to the presentGoogle Scholar (New Haven, Conn., forthcoming), ch. 9, discusses the doctrinal changes, but is far more cautious in making assertions about developments in social practice.

21 Macfarlane, Marriage and love in England, 338f.

22 Seneca, De Clementia, 1.15.1; this issue and what follows are treated at greater length in ‘Pietas, obligation and authority in the Roman family’.

23 Cantarella, E., ‘Homicides of honor: the development of Italian adultery law over two millennia’Google Scholar, in Kertzer and Saller, The family in Italy, ch. 12.

24 Goody, The oriental, the ancient and the primitive, 405, makes a similar point with illustrations from African societies.

25 Ibid., 413f.

26 The legal institution of peculium makes highly misleading Macfarlane's statement that ‘in classical Roman law..., the property of children was automatically absorbed into that of the parents...’ (Marriage and love in England, 80). Little evidence exists for financial arrangements within working families, but the emperor Antoninus Pius could refer to a son working ‘to support himself by his own labour’ during his father's lifetime (Digest 25.3.5.7). In practice, then, the law did not force sons to pool their income with their fathers’.

27 Treggiari, S., ‘Consent to Roman marriage: some aspects of law and reality’, Echos du Monde Classique: Classical Views n.s. 1 (1982), 34–44Google Scholar, and ‘Digna condicio: betrothals in the Roman upper class’, Echos du Monde Classique: Classical Views n.s. 3 (1984), 419–51.Google Scholar

28 Macfarlane notes the great power given to the father by Roman law in contrast to English parents (Marriage and love in England, 126), yet the same tension between paternal power and offspring's choice is subtly illustrated, for instance, in the pages of Henry Fielding's Tom Jones.

29 Corbier, M., ‘Idéologie et pratique de 1'héritage (Ier s. av. J.-C.- Ile s. ap. J.-C.)’, Index 13 (1985), 501–28Google Scholar; Dixon, S., ‘Breaking the law to do the right thing: the gradual erosion of the Voconian law in ancient Rome’, Adelaide Law Review 9 (1985), 519–34Google Scholar; Saller, R., ‘Roman heirship strategies: in principle and in practice’Google Scholar, in Kertzer and Saller, The family in Italy, ch. 2.

30 Champlin, E., ‘Creditur vulgo testamenta hominum speculum esse morum: why the Romans made wills’, Classical Philology 84 (1989), 198–215.CrossRefGoogle Scholar

31 It is important to remember that the bulk of these estates would not have been in cash but in land. Thus, even fathers wishing to divide their property more or less equally would have had to make decisions about which children to favour with which house or piece of land.

32 Macfarlane, ‘Demographic structures and cultural regions in Europe’, 10.

33 Goody, The oriental, the ancient and the primitive, 410–15.

34 Shaw, B. D. and Saller, R. P., ‘Close-kin marriage in Roman society?’ Man n.s. 19 (1984), 432–44.Google Scholar

35 Goody, The oriental, the ancient and the primitive, 416, citing K. Hopkins' figure of 4% adoptions (Death and renewal [(Cambridge, 1983], 49).

36 Goody, The oriental, the ancient and the primitive, 419; a point made several years ago in my ‘Slavery and the Roman family’ in M. I. Finley, ed., Classical Slavery (London, 1987), 71–6.

37 Goody, The oriental, the ancient and the primitive, 397.

38 Ibid., 404.

39 For the value of a transactional analysis as opposed to thinking in terms of a ‘system’, Brettell, C., ‘Property, kinship, and gender: a Mediterranean perspective’Google Scholar, in Kertzer and Saller, The family in Italy, ch. 18.

40 Dixon, S., ‘Family finances: Terentia and Tullia’, in Rawson, ed., The family in Ancient Rome, 93–120.Google Scholar

41 Goody, The oriental, the ancient and the primitive, 410–15.

42 Corbier, M., ‘Constructing kinship in Rome: marriage and divorce, descent and adoption’Google Scholar and Saller, ‘Roman heirship strategies’, both in Kertzer and Saller, eds, The family in Italy. It is surely true, as Corbier argues, that the Romans had more legal options (e.g. divorce and remarriage, adoption) in manipulating their kinship bonds than their counterparts in later Europe, but that it is not to say that they actually used the flexibility successfully to create lines of patrimonial succession that the Church would have wanted to disrupt, as Goody suggested in Development of family and marriage.