Individual Subjects in Roman Law
II. The Subjects of Family Law and the Individual
Item 13: The Individual: Budgets of the Individual Subject
This study concerns the concept of the individual as a subject in Roman law. Law posits the existence of a subject, an object, and the relationship between them. The word “person” comes from the Latin “personario,” meaning “mask, to sound louder.” This term originated in Roman theater, referring to the masks actors wore. Over time, the meaning evolved to encompass the individual in all aspects of life (social, political, and economic). Today, “person” commonly refers to a human being. However, in Roman law, not all beings were considered “persons.” In a physical sense, “person” referred to beings with understanding. Legally, it referred to any being capable of rights and obligations.
1. Qualifications of the Individual Subject
In Roman law, not every being was considered a “person.” To be recognized as a person, an individual had to meet specific requirements:
- Exist as a natural person.
- Fulfill certain conditions:
- Effective Birth: Detachment from the womb, with the umbilical cord cut.
- Born Alive: The Procureyan school believed life began with a cry at birth. The Savignian school (more liberal) considered any sign of life, such as breathing, sufficient.
- Human Form: Pleni Tempore births (at 6 months of pregnancy) were protected by law, notably the Lex Iura Popoae et Papi, which rewarded parents for having children and penalized those who lacked them. The Senate-consult Tertullian (time of Hadrian) granted inheritance rights to the mother (Ius Uberorum). The Senate debated whether stillborn or deformed infants could be considered alive under the Lex Iura Popoae et Papi.
During the principality (with Augustus), official birth records were established, documenting birth, parentage, and status. Unborn children (conceptus) had no legal status or capacity but were granted expectant rights in possessory matters. A curator ventris (guardian of the belly) protected the interests of the unborn.
2. Status
Status refers to an individual’s position within a community. In Roman times, it determined rights and obligations. Three types of status existed:
- Status Libertatis: Free or enslaved.
- Status Civitatis: Roman citizen or not.
- Status Familiae: Position within the family (pater familias, filius familias, or other relative).
Only Roman citizens who were free and pater familias (head of the household) were considered sui iuris (independent). All others were alieni iuris (under the authority of another).
3. Capacity: Concept and Types
Legally, capacity is synonymous with personality, the ability to have rights and obligations. Roman law recognized two dimensions:
- Legal Capacity: The ability to be a subject of rights and obligations.
- Capacity to Act: The ability to exercise those rights and obligations. Possessing the capacity to act implies legal capacity, but not vice-versa.
4. Capacity Limitations
Legal capacity could be modified by social class, religion, moral degradation, and connection to slavery. Capacity to act was affected by age, illness, prodigality, and sex.
Social Class/Trade
Social class could increase or decrease legal capacity, particularly in public law, where patricians and plebeians had different rights. In private law, the impact was less significant, except in matters like marriage. Senators could not interact with freedmen. Provincial judges, senators, and military personnel were restricted from certain activities in their territories. They could not acquire property, receive gifts, marry local women, or free slaves.
Religion
During pagan times, religious tolerance prevailed. In the Republican era, the Senate monitored foreign cults to maintain order and suppressed magic and astronomy. Christians were persecuted for not worshipping the emperor (crimen maiestatis). Christianity gradually gained acceptance and became the official religion in 333 AD. Roman lawyers were primarily concerned with the practical implications of religion, particularly its relationship to the Senate and the People (SPQR).
Moral Degradation and Repute
Dignity could be degraded through infamy (infamia), which limited legal recourse and certain activities. Two types of infamy existed: infamia iuris (by law) and infamia de facto (in fact).
Infamia Iuris
Declared by a court, infamia iuris was recorded in censorial notes during the Archaic period. It could lead to expulsion from the Senate and disqualification from public office. Specific laws restricted individuals from certain actions. Examples include prostitutes and women caught in adultery. Sometimes, infamy was socially sanctioned.