This chapter concentrates on the issues in which the Roman jurisdiction of the Empire intervened in the relationships between parents and their (minor) children. It discusses the ownership and use of the property of the children, the consequences of legal incapacity of the children, guardianship, limits of patria potestas and filial and parental duties. Children were to be constantly under someone else’s authority. This meant not only restrictions in managing property, and in incapacity to represent oneself or others, but also some privileges. Moreover, while patria potestas was an important tool in organising family finances, in propagating Romanness and proper family relationships during the Roman Empire, it was not without limits. The powers of the fathers were balanced by the requirement of pietas between parents and the children.
The Roman family was defined at law as a unit controlled by the all-powerful pater familias, its membership determined by relationship through the male line (agnatio). Both formal law and family relations altered between the fifth-century-BC XII Tables and the sixth-century-AD legal compilations ordered by the Eastern Emperor Justinian. In particular, Christianity and married women’s developing capacity to acquire and transmit property drove significant changes in power relations within the family. Scholarly perspectives on Roman law and the Roman family have also changed to take into account the religious and ethnic diversity of the Roman Empire and the social realities behind the rigid legal categories of the law. This chapter surveys these strands of scholarship.
This chapter surveys the most important original sources regarding the legal nature of marriage. It discusses the foremost problems with the legal and social construct of marriage in Roman society and surveys the chief scholarly debates of the last century that shaped our vision of the Roman marriage. It argues that the essence of the legal view of Roman marriage is that no one may constrain another person to marry or stay married. Marriage remains the free choice of an individual and in this sense its construction, based on affectio maritalis, protects the autonomy of the spouses. This view, put forward by the jurists, was not widely accepted socially. In the light of the misogyny of our literary sources, what prompted them to opt for this legal construct of marriage remains an enigma. As with many areas of Roman family law modern scholars have been misled by appearances and preconceptions.