Patria Potestas

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The patria potestas ("paternal power") was originally only an application of unified and unrestricted power ( potestas ) in ancient Rome , which was incumbent on the pater familias , the male head of the family. He exercised it over people and things, over free and unfree housemates ( familia ). In contrast to many other forms of family , the Roman familia also included married sons with their wives and children, adoptive sons, slaves , cattle and other property. The patria potestas was legally constitutive for family and married life .

Characteristics

The mos maiorum has always bound the head of the household so that it did not carry out severe punishments ( iudicium domesticum ), such as the killing of a house child ( ius vitae necisque ), but instead imposed them in his capacity as judge and with the involvement of the family council. In fact, the censors monitored the observance of morals ( boni mores ) on a public mandate . Although sources report individual cases of abuse of family violence, such cases are rare, at least in historical times. The outstanding position of the pater familias usually referred to the property rights and the power over the life of the familia rather symbolically.

The patria potestas also manifested itself in the pater familias' decision-making power over the acceptance or rejection of newborn children, the alienation ( ius vendendi ) and their killing. Children of members of the familia who could not or did not want to be raised, be it for financial reasons, be it because they were bastards , disabled or simply girls, were killed or often abandoned in public places . The exposure of newborns to public dung piles was legal throughout the Roman world until AD 374. As a rule, however, the children did not succumb to death but to slavery: they became the property of whoever took them in and raised them. In the opinion of today's ancient historians , this practice was by no means viewed by contemporaries as inhumane, as exposure gave those children a chance at survival. Only in Christian times, when the church misericordia offered alternatives to exposure, was this practice, no longer necessary, perceived as offensive and subsequently banned. The right to kill children ( ius vitae necisque ) was also only abolished under Christian influence , although it had already lost its importance at the time of the high republic .

In order to keep newborn children in the familia, on the other hand , it was necessary that the pater familias , whose feet they were laid at after the birth, kept them (which meant suscipere or madere ) and thus formally accepted them. They were given names and religious consecration , the boys on the ninth and the girls on the eighth day ( dies lustricus ), and were then educated and instructed in their parents' house.

Beginning and end of paternal violence

The patria potestas began with the birth and regularly ended with the death of the ruler. With the death of the person in power, the children (sons and daughters) became non-violent, and the sons, for their part, gained paternal power over their own children and grandchildren.

In addition to birth and death as natural grounds for and termination of paternal violence, the two manifestations of adoption played an important role in preventing the sex from becoming extinct. The Roman law knew from the Archaic period already arrogatio (adoption of a child), the force rogatio the Pontifex maximus in the comitia curiata (People's Assembly) through their decision came about. The arrogatio was later replaced by the adoptio , which was carried out in two acts. In the first act, the tripartite mancipatio was performed, a pseudo sale of the pater familias to third parties. The arrangements for this were comprehensively regulated in the Twelve Tables Act. After the third mazipation, the child was free from the previous violent relationships: si pater filium ter venum duit filius a patre liber esto = if a father has given his son for sale three times, the son should be free from paternal violence . In the second act, one application of in iure cessio , vindicated the adopters, the child, with the former force donors to counter Rights ( contravindicatio ) expressly waived and the magistrate made known the new ownership. The child lost all entitlement to inheritance from his former victim of violence (father).

Sons became sui iuris (“own right”) and could now start their own family as pater familias . The legal figures of emancipation are linked to the aforementioned sentence . House children were incapacitated. If necessary, you could obtain special assets for independent management, for example peculium castrense (assets acquired on the occasion of military service) or peculium profecticium, which can be withdrawn at any time .

Paternal violence was the starting point for the agnatic kinship system, which was decoupled from consanguinity . In the course of the legal development, however, this receded in favor of consanguinity.

In fact, the patria potestas was subject to considerable restrictions at least since the late period of the republic; however, it remained formally applicable law during the imperial period and late antiquity and was confirmed in the Codex Iustinianus in 534 AD . At that time, however, nothing is known of any actual exercise of most of the rights associated with it.

literature

Individual evidence

  1. ↑ a b c d e Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 182 ff.
  2. ↑ a b Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 92–96.