Evaluation
of Roman legal tradition.
It's
not clear when the origin of Rome happened because stories are more based on
myths and frictions than historical facts and archaeological evidence.
Archaeological evidence is possible to trace back to 753 BC, therefore, it is believed the Origin of Rome happened in 753 BC (ranging some 50 years on either
side).[1] Founders were accordion to traditions, were Romulus and Remus,
descendants of the legendary Trojan Hero, Aeneas.
The
history of Rome can be divided into three main parts, Monarchy, Republic, and
Empire. Each of these stages had different sources of law which made a valuable
contribution to the legal development of Roman law. These laws had been
developed in both civil and criminal categories. But between these two
branches, Civil law in Rome showed significant development. It is because, unlike the civil procedure codifications in the Roman era, criminal law
codifications were not Introduced, ‘magistrates’ exercised them to punish for
matters falling within their jurisdiction.[2] Civil law deals with the
behaviors of individuals or private parties. The laws of persons also fall
under this category.
The
laws of persons.
In
ancient Rome, three main categories of people can be identified. Among them,
two categories are entitled to enjoy civil rights.
Unfree
person
These
people did not have any social rights and considered things. They were under a
master and had to live like that until death or the master let them be free
men. They are known as slaves.
Sui
Juris.
They
are free people with protests. Didn’t have to follow anyone's orders but obey the existing law. They were paterfamilias, the head of the
family.
Alieni
Juris
This
category also free people but not free like sui juris. They were under
the command of the paterfamilias.
Sui
Juris was the leading category of the Roman family. The
concept ‘adaptation’ was a need for Romans because of this category. A family
without sui juris to hold the position of paterfamilias was a dead
family.[3] Therefore, every family needs a male figure to be the father of the
family and it was the only way to continue the family name.[4] Those families
who did not have a son to carry the name of the family started to adopt one
from other families. Roman expectations and shapes were quite different from
the ‘adaptation’ we witness in present society but the way they did it,
principles, and regulations have influenced the present legal background of
‘adopting’ a child. In ancient Rome, there were two concepts of ‘adapting’ a
person.
Adrogatio.
This
was the practice generally followed by those who were in danger of extinction
through a lack of heirs. In adrogatio, a sui juris person was adopted.
This means one paterfamilias adopts another. With this practice, one
Roman family will be terminated because when the adaptation was done, he lost
his social status as a paterfamilias. Thus, certain limitations were
added by the law because it was illegal in Rome to exercise an act that would
result in the loss of the voting power of a person. Hence, to stop misusing adrogatio,
many rules were implied.
Adrogatio
happened before the comitia curiata and presided over the chief
pontiff.[5] It was compulsory to have the adopted person’s will to fulfill adrogatio.
Also, another important use of the adrogatio was ‘adopting’ Natural
children into the family. If a man had a son from another woman other than the
legally married spouse, he could simply adrogatio them if they are free
citizens. If not, he can make them free, let them have citizenship, and adrogatio
him.[6]
Adoptio.
This
means the adaptation of an alieni juris person. What happened was in adoptio, an alieni juris was removed from the power of the paterfamilias
and taken under the power of another paterfamilias. Removing from
power is similar to emancipation, the son is sold between father and adopter three
times which makes him free from paterfamilias power. At first, this sale
took place in front of a ‘magistrate’ but later handing over a document saying
the sale took place was enough. Early in the republic, the consent of the adoptee
was neglected but later they emerged laws to abolish ad adaptation if the adoptee
objected.
How
the Roman concepts of ‘adaptations’ mingle with modern-day ‘adaptation’.
In
Ancient Rome, adopting a person was more of a legal relationship between two
parties to carry a family name or it was based on a political agenda. Although
the expectations are different today, the legal principles and backgrounds
used to bind the ‘adopter’ and ‘adoptee’ have a significant level of
influence by Roman law on present-day ‘adoption’ laws. Among many influences,
the following facts can be identified as the major points,
The
age gap between the two parties of the ‘adaptation’ and transferring the name of
the family.
Although
Rome did not recognize a minimum or maximum age for the adoptee, they
truly believe that there must be a certain age gap between the two parties of
the adaptation for them to be a family and for the ‘adopter’ to be the father
of the family. Also, ‘adopters’ must be mature enough to apply for an
adaptation.
Today
every country that allows to ‘adopt’ of a child, requires a certain age gap
between ‘the adopter’ and ‘adoptee’ and a minimum age for the
‘adopter’. In Sri Lanka, this age gap is 21 years[7] under normal
circumstances. Also, the adopter must be above the age of 25 or they had to be
a married couple.[8] What is interesting is that in Italy (earlier Rome) this
age gap is still 18 years.[9] This concept of a certain age gap, for the ‘adoptee’
to be the child in the family is an influence of Roman law.
Transferring
the name of the family to the adopted son was also a practice in deviated from
Rome. there is a famous example of this, Augustus
Caesar was born Gaius Octavius
Thurinus. He was the great-nephew of Gaius Julius Caesar. In his
will, Julius Caesar adopted Octavius, making him Gaius Julius
Caesar Octavianus.[10]
The same practice is allowed by the present law. In
Sri Lanka, it is allowed to use the father’s family name to adopt children[11], and also in the U.S.A[12] and many other countries with statutes.
The
concept of the maximum benefit of the child.
This
is one of the main aspects of adaptation. In ancient Rome, it was allowed to
adopt a person only if the adaptation increased the social standing of the adoptee.
Present-day all the rules and regulations are based on the concept of the
maximum benefit of the child. If the ‘adaptation’ dose does not benefit
positively to increase the status of the child it is not allowed for
sympathetic reasons or based on just the love. Examining before the ‘adaptation’,
how the changes will benefit an adoptee is a Roman legal concept that we are
using today. In Sri Lankan ‘adaptation’ law, physical and mental well-being is
considered as the benefits adoptees gain from the ‘adaptation’.[13]
also, financial status, Healthcare[14], and moral values are considered.
The
concept of adoptio minus plena
There
were two types of ‘adaptations’ in ancient Rome other than adrogatio and
adoptio. They are ‘Simple adaptation’ (adoptio minus plena) and
‘Full adaptation’ (adoption plena).[15] These two types are clearly
visible in the present world.
This
concept was introduced by Justenion and he introduced laws to practice
it. In the early period of Rome, it was ok to adoptio and only if the two
families agreed and acquired potestas. But with Justinian’s codifications,
if the ‘adopter’ was not a natural descendant of the adoptee, the latter
did not pass into the potestas of the ‘adopter’. This means the adoptee
will not be completely out of his natural family. If the ‘adopter’ dies
intestate adoptee can acquire his estate. The same principle applies present-day
in states such as France. The effects of simple adoption differ from those
of full adoption. It forges a new bond of filiation between the adopter and the
adoptee. Though, unlike ‘full adoption’, it does not break the
relationship between the adoptee and his family of origin. Once it has
been pronounced, the two filiation ties coexist: the adoptee has two
families.[16]
Authority
of the magistrate and the willingness to be adopted
In
the early period of Rome, the willingness to be adopted was not necessary
except for adoption by adrogatio. In adoptio cases will of the
adoptee to be adopted was neglected. But with the development of the law, it
had changed to abolish the ‘adaptation’ agreement if the adoptee object
to be adopted. Also, both these ‘adoption’ practices were performed in front of
a magistrate.[17] This tradition was passed down from Roman to present-day
adaptation. If someone is willing to adopt a child it is compulsory to apply
for it and get authorized by the court or relevant supreme authority. Also, it
is really important the child is accepted to be adopted. In Sri Lanka, if
someone is willing to adopt a child above age 10[18] it is compulsory to have
the will of the child to be adopted. And sole authority to order the adaptation
is with the court.
Although
the Roman Empire collapsed and ended Roman legal traditions and system of
governing did not suffer the same faith. Instead, it was sprayed into every
nook and corner in the world. Effecting to make great changes in those legal
traditions and applications with rich Roman legal concepts. Thus, it is no
surprise that the modern legal system in Adaptation also reflects Roman legal
practices. Unlike some areas in delict law, the Law of obligation does not
utilize the full concept of Roman adaptation, but it is clear that Roman
law has affected to a certain degree, present-day adaptation laws.
[1] Andrew Borkowski and Paul du Plessis,
Text book on Roman Law (Third Edition, Oxford University press 2005) 01
[2] Andrew Borkowski and Paul du Plessis, Text
book on Roman Law (Third Edition, Oxford University press 2005) 318.
[3] Carlo Lashby, ‘Adoption in the roman
Empire’ (life in the Roman Empire) < https://carolashby.com/adoption-in-the-roman-empire/> accessed 06 April 2021.
[4] Andrew M. Riggsby, Roman Law and the
Legal world of the Romans (Cambridge university press 2010) 183
[5] Andrew Borkowski and Paul du Plessis, Text
book on Roman Law (Third Edition, Oxford University press 2005) 137.
[6] W.W Bucklank and Arnold D. MacNair, Roman
Law and common Law (Second Edition, Cambridge University Press 2008) 44
[7] Adaptations of children ordinance No 24
of (1941) 03(1)
[8] ibid
[9] Editor of Vesta, who can adopt (Vesta)
< http://en.vestaadoption.org/en/countres/italy.html> Accessed 06th April 2021.
[10] Carlo Lashby, ‘Adaptation in the Roman
Empire’ (Life in the roman Empire) <https://carolashby.com/adoption-in-the-roman-empire/> Accessed 06th April 2021.
[11] Adaptations of children ordinance No 24
of (1941) 06(2)
[12] Uniform adaptation act of united state
(1994) Art 01 (103)
[13] Adaptations of children ordinance No 24
of (1941) 04(b)
[14] Uniform adaptation act of united state
(1994) Art 01 (301)
[15] Andrew Borkowski and Paul du Plessis, Text
book on Roman Law (Third Edition, Oxford University press 2005) 139.
[16] Admin of Notaires.fr, Notaires.fr (13
January 2017) < https://www.notaires.fr/en/couple-family/adoption/simple-adoption> Accessed 03 April 2021.
[17] W.W Bucklank and Arnold D. MacNair, Roman
Law and common Law (Second Edition, Cambridge University Press 2008) 44
[18] Adaptations of children ordinance No 24
of (1941) 03(5)