Embed Size (px)
Citation preview
8/10/2019 _jstor_Roman Law and Political Control - From a Primitive Society to the Dawn of the Modern World
http://slidepdf.com/reader/full/jstorroman-law-and-political-control-from-a-primitive-society-to-the-dawn 1/11
Roman Law and Political Control -from a Primitive Society to the Dawn of the Modern WorldAuthor(s): Emilio BiaginiReviewed work(s):Source: GeoJournal, Vol. 33, No. 4, Environmental Concern – Environmental Policy (August1994), pp. 331-340Published by: SpringerStable URL: http://www.jstor.org/stable/41146231 .
Accessed: 09/03/2012 16:05
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact [email protected].
Springer is collaborating with JSTOR to digitize, preserve and extend access to GeoJournal.
8/10/2019 _jstor_Roman Law and Political Control - From a Primitive Society to the Dawn of the Modern World
http://slidepdf.com/reader/full/jstorroman-law-and-political-control-from-a-primitive-society-to-the-dawn 2/11
GeoJournal
3.4
331-340
331
© 1994
(Aug) by
Kluwer
Academic
Publishers
Roman Law and PoliticalControl from
Primitive
Society
o
the
Dawn
of the Modern
World
Biagini,
Emilio,
Prof.
Dr.,
University
f Cagliari, Dipartimento
i Ricrche
Economiche
Sociali,
VialeS.
Ignazio
da
Laconi
78, 09123,
Cagliari,taly
ABSTRACT: The
purpose
f
this
paper
s to
survey
he
history
f RomanLaw in order o shed
ight pon
processes herebyociety
ay row
more
ynamic.
oman aw s the
nly
newhose
evelopment
anbe
traced
for ver housand ears, timeduring hich womain pochal rises roughtboutfar-reachinghanges o
Roman
ociety.
he first as a
consequence
fthe second
Carthaginian
ar
218-200BC),
when the raw
inhabitantsf
Latium,
n a
mere
pace
of
sixty
ears,
ttained
upremacy
ver he
ancientworld. he second
followed
losely pon
the death f
Emperor
lexandereverus
235 AD),
when he
growing
trength
f alien
populations
as
becoming
serious hreat
o the
Empire.
These
two historical
atersheds ark
hree
ifferent
ges
and
three
orrespondingly
uite
differentaw
systems
hat an
be named:
i)
the
Quiritarian
r
strictly
oman
Law, ii)
the
Universal-Roman
aw,
iii)
the
Greek- oman aw.
The
egal ytem
f he irst
poch
was
uitable o a narrow
ural
ociety.
he aw
ystem
f he
second
ge
was
uitable o the
nds nd
values f n
open
ivilised
ociety.
he ast
tage
f
Roman aw
unfolded
in
the astern
mpire,
nd hewell-known
ode of
Emperor
ustinian
527-29)
marked
he limax
f his
rocess.
As a result f
cautious
eforms
asting
everal
enturies,
he
political
tructuresf
primitive
oman
ociety
(familiae, entes,
ribus)
eclined,
powerful
entral
uthority
as
built,
he nuclear
amily
ecame he
basic
building
lock
f
ociety
isplacing
xtended
amily
nd clan
tructures,
he onditionf
womenwasfreed rom
obnoxious
utelage.
Traditionally,
heRoman
state f
the
amilia
was
nearly
territorial
tate. rimitive
uildings,
ften
mere
huts,
were
ndependent
rom ach
other. he
drive o an
increasingly
ivilised
rbanisation
nevitably
rought
about closer
patial
ntegration
f
he
built-up
rea,
nd
therefore ade t
necessary
he stablishment
fmore
andmore
requentraedial
ervitudes.o
allow he
rganisation
furban
pace
o
emerge,
he
builder adto be
granted
right
o
hold he
building
hus
rected,
or
limited
ime r
n
perpetuity,y
ease or
ale,
gainst
he
territorialretence f extended amilyr clan authority.sucaption, ledges,mortgages,nitiallysed in
provincial
ands, eplaced
he
traditionaloman and
transfer
rocedurefiducia).
In
the
time f the ate
Empire, lavery
eclined nd was
to some
extent
eplaced
y
erfdom
colonatus).
Roman
itizenship
as
granted
o
all
212
AD),
but
he ommoners
humiliores)
uffered
nder
eavy
isabilities.
Powerful
amilies
honestiores)
ften etreatedo
the
ountryside,
hile herest
f heurban
opulation
as eft
to
herowndevices
nder n
oppressive
axation
ystem.
Many
uckless
eads of
families ad
to become ax
proctors:hey
ere
eld
esponsible
or he
gathering
f
axes o
the xtent
f heir
hole
state,
nd ven n
pain
of
orture.he
State
ncreasingly
ook
ontrol ver
most
eaturesf
ocial nd
economic
ctivity,
rom
griculture
tothe
prices
f
foodstuffs;
hile
ndividual
nterprise,rogress
nd
creativity
ecame
more nd
more
tagnant.
All
these re
ndicators
f n
ncreasingly
tatic
ociety.
riental
espotism
ecame hedominantorm
f
political
organisation.
Thus,
while
rivate
aw
became
more nd
more
modernised,
aving
he
way
o the
present
egal ystems,
he
social
tructurend the
patial
rganisation
ecame
more
igid
nd
ess
open
to
nnovation.
herefore
very
incomplete
odernisation
ccurred.
he
emergence
f
more
pen
nd
dynamic
ocieties asto take
lacemany
centuriesfter
hefall f
theWestern
mpire,
recisely
n
the ame
geographicalpace
that ad
belonged
o
t,
mainly
nder
he
mpulse
f
hemore
fficient
ndcivilised
mong
he
new
Germanic) eoples
Angles,axons,
Jutes,
ranks,
ongobards,tc.)
who
mmigrated
here ith
he
Völkerwanderung
nd
njected
resh
lood
nto he
lands
of theformer
estern
mpire, hereby
nding
riental
espotism.
he
heritage
eft
y
the
evolutionf
Roman
aw, owever,
as o
be felt
nd ssimilated
y
hese
eoples:
t
was
o
become
considerable
art
f heir
own
ulturalnd
egal
heritage,
ndone of
he
many
actors
aving
he
way
o the
ventual
mergence
f
dynamicWesternocieties.
The
age-long rocess
f
change
f
Roman
Law
can
provide
seful
limpses
n
how
ttitudesndcultural
valuesnot
hostile o
development
ay
rise nd
grow
o full
maturity.
ts
study
an
help
thoughy
no means
alone
to
understand
ow hat
art
f
Europe
which
ame
under tsdirect
nfluence as
ble to
achieve
ultural
traits
pen
to
socio-economic
nnovations
nd
development.
Though
ach
ocial nd
spatial
ystem
ollows
tsown
distinctive
ath
o
development
or
tagnation),
ome
necessary
ultural
reconditions
re
broadly
imilar
or
ny
ociety.
tress
pon
ndividual
alues s
doubtlessne
such
nescapable
recondition
o
the
emergence
f a
dynamic
ociety
apable
of
endogenous
evelopment.
Unfortunately,tterly
pposite
values
are
firmly
ntrenchedn
many
ThirdWorld
ountries,
nd
social
evolution
here
s,
under his
viewpoint,
xceedingly
low
if
any.
Centuries ad still
o
elapse
for
ndividual
alues
o
prevail
n
Europe
fter
he
ge
of
Justinian,
nd more
centuries
ent
y
between
he
riumph
f
hese
ndividual
alues
nd the
ctual
ake-offstage,
hich
nly
ame
aboutwith
he
ndustrial
evolution.
earing
n
mind
hese
facts,
he
nescapable
onclusion
rises
hat he
apparent
ack
f
ignificant
ultural
hange
eading
owards
dynamic
ociety
n
many
ountries
ust
ecessarily
be a
matterf
he
deepest
oncern.
his s
aggravated
y
ther
isquieting
eaturesf
he Third
World ,
uch
s
the
propensity
o
authoritarian
egimes
a
propensity
hichn ts
wn
urns
closely
elated o
poorly
eveloped
individual
alues.
8/10/2019 _jstor_Roman Law and Political Control - From a Primitive Society to the Dawn of the Modern World
http://slidepdf.com/reader/full/jstorroman-law-and-political-control-from-a-primitive-society-to-the-dawn 3/11
332
GeoJournal 3.4/1 94
Introduction
It can
hardly
be denied that
understanding
development is of vital importance to geography.
Development
here
is
defined s a
process of
innovative
structural
hange f
a
social
and
spatial system. hough
exogenous
factors
certainly lay
a role
in
easing
or
hindering
ountries
nd
regions
n their
development
paths,
hecrucial
mportance
f
endogenous
actorsn the
process
of
development
is
being
increasingly
acknowledged.
The nature either tatic
r
dynamic
of
society
s the
basic
endogenous
actor,
hichmust e well
understood,
f
we are to formulate
n
acceptable
nterpretation
f
the
development rocess.
Ideally,
social
system
an be either
pen
or closed
towards
nnovation.
hus a
dynamic
ociety
ill
be
ready
o
generate,mitate, orrownd accept nnovationspolitical,
social,
economic, managerial,
echnological),
whereas
static
society
will not
be so inclined.
Dynamic
society
appears
o
be
grounded
pon
individual
alues,
keen on
empirical nowledge
nd
willing
o
provide
ocial
rewards
for
initiators f
innovations,
whilst
static
society
in
grounded
upon
collective
values
and a
high
regard
for
tradition
nd
the
elderly.
ynamic
ociety
s
secularised,
though
by
no means
atheistic,
whereas
static
ociety
s
typically
heocratic
nd often
ntolerant.
Needless to
say,
no
such
thing
s a
purely
tatic
or a
purelyynamic
ociety
xists.
eal
societies
nvariably
all
n
between
the
two
ideal extremes.
So
it
would
be
meaningless
o
say
hat
real
ociety
s static
r
dynamic
n
absolute erms:t sonly ossible,ncomparativeerms,o
state
that
given
ociety
s more
dynamic
han another
one,
or
more
dynamic
han he
verage
f
he
ge,
or
that t
is
getting
more
or less)
dynamic
ver
time.
Moreover,
this
comparative
hierarchy
may
be
asymmetric,
s
it
happens
for
he urban
hierarchy:
hus
real
ocietymay
be
more
dynamic
han
nother
ne
under
some
viewpoints
nd
less so
regarding
ther
spects:
to
discern
which
ociety
s more
dynamic
may
be
in some
cases
no
simple
matter.
Another
ifficulty
tems
from
he
fact
hatno
single
geographer
r social
scientist
an
hope
to
possess
the
whole
range
f
professional
ompetence
equired
o
assess
whether
society
s more
or
less
dynamic.
Some featuresof societies appear to possess a
particulary
igh
diagnostic
alue
for
an
assessment
of
social
dynamism.
We
may
ook
at:
a)
the
sense
of
time1},
b)
logical
and
language
structures
more
or
less
conducive
o
mathematical
nd
scientific
easoning,
c)
art
traditions
more
or
less
conducive
to
an
improved
cientific
ision f
the
world
eg
entailing
he
study
f
geometry,
erspective
nd
anatomy),
d)
technological
levels
2),
e)
levels
of
respect
and
equality
of
opportunity
afforded
women
(this
being
one
of
hemost
bvious
ndicators
f
high
ivilisation
nd
a
precondition
o an enhancementof all mental
potential
f
humankind),
f)
legal
structures
(whichprovide
aluable
nsights
into the nature fpolitical nd social control).
The list s
certainly
arfrom xhaustive.
This
paper
is focused
upon political
controlwithin
society,
swell as
upongeographicpace,
on the
basis of a
survey
f the
history
f Roman
Law
(Bonfante
966;
Di
Marzio
1946;
Schiavone
1989). Legal
structures,
ith
reference
o the
family,
he condition
f
women,
ocial
structurend
spatial organisation
ill be considered.
Political Control
and the
Development
of Roman
Law
Roman
Law
s the
only
newhose
development
an
be
tracedforover thousandyears,through tages of the
utmost
mportance
or
he
history
f
mankind.
uring
his
long
span
of
time,
wo
main
epochal
crises
brought
bout
far-reaching
hanges
of
revolutionary
mport
within
Roman
society.
The
first ame
about
as a
consequence
of
the second
Carthaginian
ar
218-200
BC),
when
the
raw
nhabitants
of Latium
became,
n
a
mere
pace
of
sixty ears,
masters
of
the ancient
world
and
heirs
to
the most
flourishing
Mediterranean
ivilisations.
The
second
one followed
losely
he
deathof
Emperor
Alexander
everus
235
AD),
when he
growing
trength
f
the
Germanic
populations
of central
Europe
and
the
renewed
might
f
the Persians
under
the
new
Sassanid
Empire began threateninghe Roman borderson the
Rhine,
on
the
Danube,
on
the
Euphrates.
Though
the
Roman
Empire
was
eventually
estored
or
ome
centuries
(and
it was
to last
for
many
more
centuries
s Eastern
Roman,
r
Byzantine,
mpire
fter
hefallof
the
western
part),
he
primacy
f Rome
tselfnd
of
taly
had
vanished
in the
process,
hereby
ausing
radical
readjustment
f
Centre-Periphery
elationships.
These
two
historical
watersheds
mark
hree
different
ages
and
three
orrespondingly
uite
different
aw
ystems,
though
t must
be
borne
in
mindthat
historical
nertia
often
ended
to
preserve
lder
nstitutions
nd
to
delay
new
beginnings,
o
that
egal
developments
id
not
unfold
atan
equal
pace
for
ll
institutions,
nd
thus
he
egal
frame-
work tthecloseof a given poch s ratherfa mixedkind.
These
three
ystems
an
be
named:
(i)
the
Quiritarian
r
strictly
oman
Law
ius Quiritium),
(ii)
the Universal-Roman
aw
(ius
gentium),
(iii)
the Greek-Roman
aw
of
the
popaioi3).
The
egal
system
f
the
first
poch
ppears
uitable
o
a
narrow-minded
ociety,
iving
n a
simple
nd
essentially
rural
style.
There
was
a
set
of
hierarchically
rdered
political
tructures:
hecivitas
the
City),
he
gentesclans),
the
amiliae,
s in
the
primitive
ges.
The
early
orce
f
the
Roman
State,grounded
upon
the
civitas,
llowed
the
survival
f
the
atter
roup
nly,
he
amilia.
Each
familia
was
headed
by
the
paterfamilias.
he
economy
was
8/10/2019 _jstor_Roman Law and Political Control - From a Primitive Society to the Dawn of the Modern World
http://slidepdf.com/reader/full/jstorroman-law-and-political-control-from-a-primitive-society-to-the-dawn 4/11
GeoJournal
3.4/1
94
333
basically ural,
he
property
ivided
mong
heheads of
he
familiae,
agricultural
nterestswere
dominant.
Legal
dealings
wereceremonies
n
which
raditionally
ixed nd
solemnwordshad tobe uttered. uchceremonies ere, s
for nstance:
he
mancipatio,
he
sponsio
r
stipulatio
uris
avilis,
he actio
acramenti,
nd so forth.
he Laws ofthe
XII
Tables,
e the ius
civile
civil aw),
deriving
rom he
jurisprudence ie
the
accumulated
traditionof
legal
judgements)
worked ut
by
religious
eaders
Pontífices),
were the chief
xpressions
f the
age.
The second
age,
though
unfolding
long
traditional
lines,
xhibited n
ncreasingly
efinedaw
ystem,
uitable
tothe nds
nd values
of more
pen
and
civilised
ociety,
better
ttuned o
nternationalinks
nd to
the
broadening
and
diversification f
commercial
relationships.
his
evolution
was
brought
bout
through
he
gency
f
everal
centres f social
and
political
power:
the
Praetor
extant
since367 BC, according o tradition),he urisprudence,
the
Emperors.
he
familia
grew
weaker nd went
nto
a
slow
demise,
o be
increasinglyeplaced
by
the
family
n
the
modern
sense.
A
growing
new
set of
institutional
devices and
special
remedies
broadened the
field
of
ancient
aw
and smoothed
ut
its
harshness. n
criminal
law,
group
evenge
was
replaced
by
penalties
mposed
by
theState
Santalucia
1988).
n
civil
aw,
ncient
orms
ost
their
more
rigid
and
peculiar
features
the
sponsio
or
stipulatio
uris
ivilis,
or
nstance, ielded
o
the
stipulatio
iuris
entium),
r
heir
igour
nd
observanceell n
abeyance.
A
system
f
egal
norms,
stablished
y
he
magistracy
through
proclamations
edicta)
became
known as
ius
honorarium
from
onor,
eaning
magistracy ).
his
wasa
work fthePraetor, arked ya constant ffortowards
achieving
new
ends
throughgradual
and
cumulative
exceptions
o
old
institutional
rameworks,
anaged
to
smooth
he
harsher
ontrasts
etween
ncient
nstitutions
and
new
deas.This s
the
more
typical xpression
f
the
age:
there
were
lsoviolent
evolutionarypheavals
such
as
the
land
war
f
hte
Gracchi
nd the
civil
wars
which
accompanied
he
demise f
he
Republic
nd
the
rise
f
he
Empire),
but
the main
changes
-
true
examples
of
integrative
nnovations4)
came
about
by
slow,
onstant
reforms.n
this
ge I-III
cent.
AD)
classical
urisprudence
flourished.
With
he
passing
f
the
Republic
nd
the
coming
f
he
Empire
n
the
ages
of
Caesar
and
Augustus,
etween he
secondhalf fthe cent.BC andtheearly cent.AD, the
comitia
enturiata
where
Roman
citizens
ould
vote
by
tribe)
ost
mportance,
s a
result
f
a
long
process.
hese
political
tructures
ere
attuned o
the
government
f a
city-State,
ot
o
the
dministration
f
vast
mpire,
hich
required
ome
kindof
central
ontrol
Cowell
1968).
The
political
trength
fthe
Senate
also
declined
vis-à-vis
he
rise of
the
Principatum,
ut
found
alternative
utlets n
legislating
n
thefield f
private
aw,
where t
slowly
ame
to
establish
new
egal
tradition.
While
Rome and
Italy
steadily
ost
ground
conomically,
ocially
nd
politically,
the
Roman
citizenship
was
granted
o
more
and
more
inhabitants
f
the
provinces,
until
the
process
was
completed y
Caracalla n 212
AD,
who
granted
itizenship
to all free
ubjects. taly
declinedfrom central
olitical
position
to that of a
province
among
many,
nd this
developmentwas underpinned y its relative conomic
and
demographic
ecline,
s well
s
by
he
rise
f
Gaul and
especially
f the rich
astern
provinces.
The ast
tage
of
RomanLaw unfolded
mong
he east
latinised
opulations
f thewhole
Empire,
whose
already
very
high
tandard
f
civilisation ad
preventedny
real
latinisation.
he
Romans
hemselves ever
ried o atinise
them; they
had been rather
more keen
to learn
Greek
themselves.
nly
fter
he
great
risis f
the
II
cent.
AD,
whichwas
overcome hanks
o
the
great
llirian
mperors,
such as
Diocletian
nd
Constantine,
erethere onscious
attempts
o
spread
Latin
into
the
eastern
part
of the
Empire.
ustinianimself
as a
Latin-speaking
llirian
nd
legislated
n
Latin,
but in
his time
and
throughout
he
whole VI cent.AD, Latinwas losing groundfast n the
Eastern
Empire,
while
Greek
was
being forgotten
n
Western
Europe
and
the two
parts
of
Europe
were
becoming
ulturally
ore and
more
estranged
rom
ach
other.
The
economic
and
cultural
entreof the
Roman
world
had
long
shifted
rom
taly
to
the
East,
where
legislation
ontinued
with
great
itality
nd
power
ill
he
times f
the
Fourth
rusade
1204),
when
Constantinople
was
conquered
nd
pillaged y
he
Crusaders,
ever
o
rise
again
to
its
former
eights.
The
Greek
pirit
fthe
popaioi,brilliant,
umane,
ut
less
logic
and
practical
han
hetrue
Roman
spirit, ave
a
distinct
mprint
o the
whole
subsequent
volution
f aw
(Bonfante
966).
The
demise
of
the
Roman
amilia
ushed
fortho itsconclusion,hebasic nstitutionsooted nthe
ancient
ural
ife r
inked o
the
most
herished
raditions
and
the
peculiar
endencies nd
ways
f
thinking
f
Rome
and
romanised
Italy,
even
without
being
officially
abolished,
id
never
trike oots n
the
East,
while
mercy
often
ook
pride
f
place
at
the
expense
of
strict
ustice.
n
legal
intercourse
he
largest
room
was
accorded
to
individual
will,great
abundance of
public
and
private
scripts
eplaced
ld
peculiar
eremonies. t
the ame
time
Roman
awrose
to
the
evel of
general
aw,
under
which
regional
egal
traditions
managed or
sought)
to
assert
themselves.
he
well
known
Code
of
Emperor
Justinian
(527-29)
was
the
climax
of
this
process.
The
Family
and
Primitive
ociety
Primitive
ocieties
do
not
have
one
singlesupreme
power
keeping
the
peace
and
providing
defence,
but
several ets
of
power
tructures,
ne
above
another,
o
that
the
authority
f
the
supreme
political
power
is
not
exercised,
s
that
f
present
ay
States,
mmediately
pon
individuals,
ut
upon
subordinate
roups;
t s
not imited
by
ndividual
iberty,
ut
by
the
authority
f
groups
r
by
that
oftheir
hiefs.
8/10/2019 _jstor_Roman Law and Political Control - From a Primitive Society to the Dawn of the Modern World
http://slidepdf.com/reader/full/jstorroman-law-and-political-control-from-a-primitive-society-to-the-dawn 5/11
334
GeoJournal
3.4/1994
Primitive
oman
society
was made
up
of different
layers
f
political
tructures.
n orderof
increasing
ize,
they
an be described s follows.
(i) Thefamiliae, rganisedas can be inferredrom he
historical record and from
survivingprimitive
features f law
itself)
upon
a broader
basis than a
mere extended
amily,
e made
up
of a
largegroup
having
common
ncestor.
orthenuclear
amily
n
a modern
ense,
the Latin
language
did not even
have a name. The true
Roman
family familia,
namedalso
familia
ure
roprio)
was but a
group
f
people
held
together
y
the
authority
xercised,
or
merely
political
ends,
by
one
of
them,
called
paterfamilias.
he
familia
and the
nuclear
family
were
worlds
apart,
both
in structure
nd social
function.
(ii)
The
gentes
clans).
(iii) The three ancestral ribustribes) of the time of
Romulus.
(iv)
Finally
he civitas
the
city-
tate).
The
Demise of
Primitive
olitical
Structures
The
Roman
civitas
was not
slow
in
hastening
he
demise
f
minor
roupings,
hereby
uilding
p
a
powerful
central
uthority.
enetic
tribes
disappeared
under
the
early ings.
he
gentes
ithered
way
n
Republican
imes
and
were
reduced
o a mere
private
nstitution:
nder
he
Antonines heywerebut a fadinghistoricalmemory.
Only
the
familia
remained
s
a
compact
ndependent
organism
onfronting
he State.
However,
s
far
as the
basic
relationships
f
political
ction
ie
the
entrusting
f
public
office,
he
right
o
vote and
military
ervice)
were
concerned,
he
civitas
did
not
pay
any
attention
o
the
autonomy
of
the
familia,
since
the
pater
and
the
flliifamilias
were,
from
the
earliest
times,
regarded
individually
s citizens
n
equal
footing.
ut
in all other
repects,
oth
nternal,
e
between
eople
of
he
amilia,
nd
external,
he
Roman
Staterefrained
rom
nterfering
ith
this
singular
autonomy
and
with the
cumbersome
authority
f
ts head.
Roman
private
aw
was,
throughout
the
really
oman
ge,
he aw
of
he
atresfamilias
r
heads
ofthefamiliae.
Historical
nalogy
eems
to
suggest
hatthe
Roman
State
ntended
o
preserve
nd
even
to
consolidate
he
independence
nd
strength
f
the
more
restricted
roup
which
aused
less
concern,
n order
o concentrate
pon
dismantling
he
more
dangerous
major
groupings.
n
fact,
in the
Middle
Ages,
heGerman
mperors
nd
the
Kings
f
France
acted
likewise
owards
municipalities
nd
minor
vassals
in
order
to weaken
the
greater
feudatories
(Bonfante
966).
Only
fter
thad
managed
o
get
rid
f
he
major
roups,
did
the
State
setout
dismantling
he
amilia.
The
pace
of
this
process
quickened
n the
Roman-Greek
ge,
though,
in
outer
ppearance,
he
amiliakept
ts
primitive
eatures
in the
Codex
ustinianeustself. he
dichotomy
etween
familia
nd nuclear
amily
ended o
disappear ery lowly,
as thetypical ets ofrelationshipsf thenuclearfamily
overcame nd
replaced
those of the
familia,
or at least
these were
reinterpreted
n a
quite
different
pirit.
However,
his transformation
ecame
complete
n the
Code of
Justinian
nly
s far s two
family
nstitutions
re
concerned:
guardianship
and
care. Under all other
viewpoints
he
change
was
finally ccomplished
eyond
Roman
Law,
n
the
new societies
ormed
fter he
demise
of the
ancientworld.
Only
n these
new societies
did the
term
family
ake
on
its
present
meaning.
In the archaic
age
the
sovereign
uthority
f the
paterfamilias
as
named
manus.
ater s
became
known s
potestas:
both terms
were
also
used to
indicate
the
authority
f
kings
nd
magistrates.
ince
theearliest
imes
two differentides of the authorityf thepaterfamilias
were
indicated
by
means
of
differenterms:
he
power
upon
people
was called
manus,
that
upon
things
mancipium.
Till the ast
days
f classical
aw,
ven
themost xtreme
feature
f
the
patria
potestas,
he
power
f
ife nd
death
(ius
vitae
et
necis),
was
not
officially
epealed:
it
disappeared
nly
n the
ast
epoch,
nder
Greek
nfluence,
strengthened
y
the
new
Christian
pirit.
t
appears
that
since
Valentinian's
ime he us
patrium
ad
to
yield
othe
ius
publicum
n criminal
rosecution,
hile nfant
illing
became iable
to
the death
penalty.
ustinian
irst
quated
exposure
with
murder, ringing
t under
he
death
penalty
too.
The
patria
otestas
hrank
n the
Roman-Greek
ge
to
a limited owerofdiscipline. orcases calling or evere
penalties
he
paterfamilias
ould
not
pass
sentence
imself
but
had to
turn
o
magistrates
rthe
provincial
overnor.
According
o the archaic
principles,
he
paterfamilias
was
the
only subject
of
patrimonial
ights:
he
could
manage
the estate
of
the
familia
as
he
pleased,
while
anything
cquired
by
the
flliifamilias
elonged
to
him.
Often
nough
he
paterfamilias
ranted
he
iliusfamilias
small
personal
state
peculium),
f
which
he
iliusfamilias
could
not
become
master
even
had
the
paterfamilias
wished
so
(thepeculium,
n
the
other
hand,
used
to
be
granted
o slaves
too).
During
the classical
age,
an
exception
was
made
in
favour f
soldiers
peculium
astrense)
y Augustus,
who
granted lliifamiliaservingn thearmy heright fwill
and
testament
pon
what
they
had
acquired
during
he
service.
adrian
xtended
uch
right
o
discharged
oldiers
too.
In
the
third
ge,
the
patrimonial
aw
of
the
amilia
was
utterly
ubverted.
n
agreement
with
the
new
Imperial
organisation,
which
had
severed
civil
from
military
functions,
he
privilege
f
men
n theforces
was
extended
in 326
AD
by
Constantine
o office
earers
f
the
mperial
Court.
His successors
ave
t to
all
State
mployees,
hose
office
as at
that
ime
regarded
s
akin
o
military
ervice.
In 530
Justinian
rought
nder
he
same
heading
ll
gifts
by
the
Emperor
nd
the
Empress.
With ucri
ub
iei of
all
8/10/2019 _jstor_Roman Law and Political Control - From a Primitive Society to the Dawn of the Modern World
http://slidepdf.com/reader/full/jstorroman-law-and-political-control-from-a-primitive-society-to-the-dawn 6/11
GeoJournal
3.4/1 94
335
kinds, herefore,
rose the
peculium uasi
castrense,
o
longer ubject
o the
paterfamilias.
An even broader
xception,
hichwas
to
sweep
away
all traditionalrinciples, as introduced yConstantine.
By
means of a
Constitution f
his,
of
the
year 319,
influenced
y
Greek
practice,
e ordered
he
setting
side
exclusively
or hechildren f the
hereditary
state
of the
mother
bona
materna),
hus
depriving
he
paterfamilias
f
his
traditional
ight
pon
such
estate.This
measure
was
later xtended o the estates f
maternal
ncestors
bona
materni
eneris)
nd to
estates
cquired
hrough
marriage.
Justinian
ompleted
these
revolutionary
hanges by
allowing
he
iliusfamilias
o
keep
for
himself
nything
e
acquired
n
anyway,
hrough ifts
r
professional
ctivities,
although
he
usufruct till
accruedto the
paterfamilias.
During
the
Middle
Ages
such
patrimony
of the
filiusfamilias
ame to be
known as
peculium
adventi-
cium.
Justinianlso
ruled hat f
the
paterfamilias
efused
o
accept
gift,
r f
the
giver
eclared
hathe
intended
he
gift
o be for
he
on
only,
he
father as
not
to
have even
the
usufruct
peculium
dventicium
rreguläre).
oreover,
the
same
Emperor
abolished
also
the
falling
of
the
peculium
astrense
nd
quasi
castrenseo
the
estateof
the
father
iure
eculii),
hould
the
son die
without
eaving
will: n
that
ase
current
uccession
aw
was to
be
enfor-
ced.
The
Roman
deas
of
patrimonial
nity
nd
of
exclusive
authority
fthe
paterfamilias
pon
the
family
state
were
thus
utterly
ubverted. s
often
appened
n
the
history
f
Roman
Law,exceptions
lowly
ndermined
radition.
he
ruling nfluence rom he ellenisedeasternpartof the
Empire,
fter
hecrisis
of
the II
century
D,
ended
up
eroding
entirely
he
traditional
asis
of
Roman
legal
structure.
othing
lse
was
left ut
to
rename
hings
nd
reformulate
egal
expressions.
Eventually
he son
came
to earn
for
he
paterfamilias
only
f
he
managed
the
father's
state
ex
re
patris)
or
following
irections
rom
im
ex
iussu
patris).
ven
the
name
peculium
id
notfit he
Roman
oncept ny
onger,
s
the
paterfamilias
ad
lost
even
the
authority
o
regain
control
f
the
estate
ure
eculii,
n
authority
hich
was
open
to
the
interpretation
hereby
his
property
ights
could be
regarded
almost as
quiescent
rather
than
obliterated.he
usufruct
ight
fthe
paterfamilias
n the
possessions of the filiifamiliaswas not eminentbut
subordinate,
more
than
anything
lse
a
vestige
of
the
ancient
deas
of
family ower
nd
unity.
ut
for
he
names,
the
arrangement
as
already
he
same as
that f
modern
law
codes.
The
sale
or
the
surrender
as
a
punishment
f
a
crime)
by
the
paterfamilias
f a
filiusfamilias
noxae
detitio),
typical
feature
of
classical
law,
or
his
surrenders
a
guarantee
or
n
obligation
f
the
paterfamilias,
hich
was
instead
a
feature
of
archaic law
only,
caused
the
filiusfamilias
o
come
under
he
mancipium
f
third
arty.
Originally
his
must
have
meant
or
he
iliusfamilias
o
fall
into
the
condition
f a
slave.
But since
the earliest imes of
Rome,
the
State,
by
equating
in
public
intercourse the condition of
filiusfamilias
nd
paterfamilias,
ould not tolerate hat
he
sale or the noxae datioof thefiliusfamiliasame to its
extreme
consequences.
A
Roman
citizen was
not to
become the slave ofanotherRoman
citizen.
Either
sold or
surrendered,
he
filiusfamilias
was
nevertheless
ubject
o theman
to whomhis
paterfamilias
hadhandedhim
over
normally
nother
aterfamilias),
e
had to
serve him
and,
ike
the
slave,
could not
earn for
himself ut
only
for
hemaster. ll
private
onsequences
of
slavery
were
preserved
ntact.
However,
t was
a
firm
principle
hat
person
n
this
unfree
ondition
caput
n
mancipio)
was
nevertheless,
o
some
extent,
ree
liberum
caput)',
e
was
merely
n
a
condition kin
o that f
slave
(servi
oco,
or in
mancipii ausa),
but not in
true
lavery.
A
slow
process
of
reform
widenedthe
gulf
between
thesemancipio ati ndthe laves.Themancipio ati ould
not
be
offended
y
their
masterwith
mpunity
nd
could
achieve
reedom,
ven
gainst
hewill
of
he
master,
nder
certain
onditions,
nless
they
had been
surrenderedn
punishment
or
ome
guilt
ex
noxali
causa).
On
the
other
and,
n
classical
imes,
he
mancipatio
f
the
iliusfamilias,xcept
nthe
case
of
guilt,
eems
tohave
been
used
rather
s a
device to set
the
filiusfamilias
ree
from
he
father's
ower.
The
more serious
case of
the
noxae
deditio,
owever,
asted n
the
Western
mpire
ill
the V
cent.
AD,
as
shown
by
the
fragments
f
Autun,
ut
in
theEast
it
seems
never o
have
taken
roots.
Marriage
and
the
Changing
Condition
of
Women
Marriage
etween
atricians
nd
plebeians
was
nitially
forbidden:
prohibition
ater
abolished,
according
o
tradition,y
theLex
Canuleia n
445
BC. This
prohibition
was an
evident
residue of
the
primitive
ondition
of
plebeians
s
foreigners.
arriage
etween
Roman
citizens
on
the
one
hand
and
inhabitants
f
subjected
provinces
(peregrini)
nd
foreigners
n
the
other
was n
fact
nlawful.
Children
of
informal
nions
between
citizens nd
non-
citizens
were
obviously
llegitimate.
owever,
heodosius
II
and
Valentinian
II
-
wishing
o
replenish
he
ranks
(curiae)ofdecurión itizens,whohad to guarantee, ith
their
wn
estate
nd
even
on
pain
of
torture,
he
payment
of
axes n
their
wn
communities
obviously
n
extremely
onerous
ask n
those
times
f
the
ater
mpire)
allowed
the
donation,
r
the
bequest
by
will,
even
of
the
whole
estate,
to
illegitimate
hildren,
provided
these
were
enrolled
s
decurions,
f
they
were
male,
or
married
o a
decurión,
n
the
case
of
females.
Guardianship,
ven in
classical
law,
was
intimately
linked o
nheritance
ndthis
ink
ecame
closer
nd
more
natural
s
we
go
back in
time.
Since
Roman
nheritance
was
originally
ut
the
designation
f a
successor
o
the
sovereign ower
pon
the
amilia,
he
upshot
s
clear:
the
8/10/2019 _jstor_Roman Law and Political Control - From a Primitive Society to the Dawn of the Modern World
http://slidepdf.com/reader/full/jstorroman-law-and-political-control-from-a-primitive-society-to-the-dawn 7/11
336
GeoJournal 3.4/1 94
person
who was later alled
guardian
as
originally
he
new head of
the
familia, designated by
the dead
paterfamilias y
means of the will. The
beginnings
f
guardianship nd of patrimonial nheritance ollowed
closely
he demise
of the
gens.
The basic trendwas towards
llowing
hewoman free
choice of her
guardian.
t became
customary
nd
an
accepted egal
practice
or erhusband
o allow
her,
n his
will,
he choice of
her own
guardian
tutor
ptivus).
his
choice
tutoris
ptio)
came
to be viewed n the
broadest
sense.The woman
could
choose one
general
guardian,
r
several
guardians
ordifferent
inds
of
transactions;
nd,
what arriedven
more
weight,
twas
possible
o
allowher
to choose
again
and
again,
withno
limitation hatsoever
(optioplena).
Jurisconsults,oreover,
evised
one
more
way
o
free
women rom
gnatic
ower
within
he
amilia.
he
woman,
withoutmarrying,ould submitherself o theauthority
(manus)
f
someone
she could
trust:
he
process
ook
the
form
of
the
coemptio,
under
agreement
that
the
coëmptionator
as
going
o
emancipate
er;
after
hathe
became
her
guardian
nd
was called
tutor
lduciarius.
Legislation
ollowed
he ame
path. mperor
ugustus,
on the
basis
of
his ex
Julia,
anctioned
he
xemption
rom
guardianship
or ree
women
who
were
mothers
fthree
children
nd
for
liberated
slaves
(libertae)
who
were
mothers
f
four
children.
ater
on,
Emperor
Claudius
repealed gnatic
guardianship
ltogether.
Guardianship
pon
women
is still
mentioned
n a
constitution
y
Diocletian
293
AD)
and
the us
iberorum
in two
Egyptian
apyri
f
271
and 350.
Nevertheless
t is
unlikelyhat uchpractices ver ookroot n theEastern
Empire,
where
the
papyri
nd the
laws
of
the
later
ge
reveal
legal
regime
otally
ncompatible
ith
ny
kind
f
guardianship
xercised
by
the husband.
Valentinian
I
(390
AD)
allowed
ven
the
mother
nd
the
grand-
mother
to
become
guardians
f
their
male
children
nd
nephews.
Roman
Law
and
Social
Structure
Mention
has
been
made
of
the
primitive
ichotomy
between
atricians
nd
plebeians.
he
slow,
ften
egative,
demographic
rowth
fthe
patrician
lite,
ased
plebeian
upwardocialmobility,hough otwithouttruggle;nthe
V cent.
BC
a new
patricio-plebeian
ristocracy,
arked
y
intermarriages
llowed
by
the
Lex
Canuleia
cited
above,
was
already
merging
Cassola
1988;
Ferenczy
976).
In ancient
Roman
aw
-
leaving
side
the
conditions,
which
were
transient
nes
anyway,
f
the
addicti,
nexi,
iudicati,
nd
the
ike
-
the status
f
freedman
libertus)
s
perhaps
he
only
ne
which
o
some
extent
xercises
ome
influence
pon
legal
capacity.
n
the
imperial
ge
some
social
conditions
egan
however
o
be felt
n a
favourable
or
nan unfavourable
ense.
Under
Augustus
he ex
ulia
de
maritandis
rdinibus
which
ceased
to
be
in force
n
Justinian's
ime)
granted
rivileges
o
married
eople
with
children,
hile t set imitations or he unmarriednd the
widowed;
military
ervice
was linkedwith a number f
privileges,
specially
as
far
as inheritance aw
was
concerned;provincial overnorswere nsteadprohibited
to
acquire
estates
n
the
province hey
uled,
o
carry
ut
commercial
ctivities r
usury here,
nd to
marry
omen
of the
province.
In the Roman-Ellenic
ge,public
aw
developed
n a
way clearly eflecting growing
ocial
rigidity.
ndeed
in
these ater
imes
great
eal of the
egislation
oncerned
public
law.
A
peculiar
featurewas the
emergence
of
colonatus,
kind of
serfdom
eplacing
ncient
slavery,
which
for reason
that need
not detain
us
here5),
was
coming
o
an end.
Coloni
were an
hereditarylass,
made
up
of freedmen
whowerenevertheless
ied
o thefarm
nd
thus
ubject
o
the
farm
wners.
As
they
were
free,
he
marriages
f
these
serfs unlike hoseofthe laves were ustaenuptiae; nd
they
were ntitled
o own
property:
ut
their
ight
o
carry
out
property
ransfers
as
restricted,
ince
anything
hey
possessed
was to
be held
as a
guarantee
or he
payment
f
rent
and
taxes;
if
they
eft
the
farm,
hey
could be
compelled
to
come
back;
neither
ould
they
sue
their
master,
nless
he
wished
to
raisetheir
ent.
The condition
f
colonus
was established
y
birth
even
if
only
ne
ofthe
parents
was
of
that
ondition), y
thirty-
year
prescription,
y
self-surrender,ybeggary,
hereby
beggar
was
obliged
to become
colonus
of
the
man
who
reported
him to the
authorities.
mancipation
by
the
master
was forbidden:
ne
could
cease
being
a colonus
onlybypurchasing
he
farm
r
by rising
o the
dignity
f
bishop- twooccurrenceswhich, houghnot impossible,
were
obviously
ather
nlikely.
Though
all
were
Roman
citizens
by
now,
a
heavy
discrimination
was
practised
between
the
rich and
powerful
honestiores)
nd
the commoners
humiliores),
whose ot
was
far rom
leasant.
owerful
amilies
ound
comfortable
retreat
in their
spacious
villas in
the
countryside,
hile ess
fortunate
nes
were eft
o
shift
or
themselves
n towns
nder
n
oppressive
axation
ystem:
many
of them
had
to
provide
decurions,
with
all the
attendant
nd
sometimes
ragic
onsequences
highlighted
above.
Nearly
ny
tanding
r
profession
ecame
the
object
of
detailed
egulation:
ecurions,
rofessionals,
ankers
nd
so forth.t was particularlyo forprofessions fpublic
interest,
ith
he
greatest
mphasis
placed
upon
those
n
any
way
related
to the
supplying
f
food
and
various
commodities
to
the
two
capital
cities,
Rome
and
Constantinople
ship-owners,
utchers,
millers,
bakers,
masons,
etc).
These
professions
ecame
constrained
nd
hereditary
oo,
within
ppropriate
uilds6).
Such
„socialistic
rends
of
the
declining
Empire,
whereby
he
State
ncreasingly
bsorbed
nd
took
control
over
most
features
f social
and
economic
activity,
rom
agriculture
o
the
prices
of
foodstuffs,
nd
in which
individual
nterprise,
rogress,
reativity
ecame
more
nd
more
tagnant,
re
clear
ndicators
fan
increasingly
tatic
8/10/2019 _jstor_Roman Law and Political Control - From a Primitive Society to the Dawn of the Modern World
http://slidepdf.com/reader/full/jstorroman-law-and-political-control-from-a-primitive-society-to-the-dawn 8/11
GeoJournal
3.4/1994
337
society.
riental
despotism Wittfogel
957)
became the
dominantform of
political
organisation
n
the whole
Roman
Empire
and lasted
throughout
he
subsequent
development f theByzantine mpire.
Thus,
while
private
aw became more and
more
modernised,
aving
he
way
to the
present
egal systems,
the social structurend the
spatial
organisation
ecame
more
rigid
nd less
open
to innovation. herefore
very
incomplete
modernisation
ccurred.The
emergence
f
more
pen
societies
was to take
place many
enturies
fter
the fall of
the Western
mpire,
precisely
n
the same
geographicalpace
which ad
belonged
o
t,mainly
nder
the
mpulse
f the more
efficientnd
civilised
mong
he
new
peoples
Angles, axons,Jutes,
ranks,
ongobards,
etc.)
who
mmigrated
herewith he
Völkerwanderung
nd
brought
riental
espotism
o an
end,
njecting
resh lood
into he ands of
theformer
estern
mpire.
he
heritage
left y he volution fRomanLaw,however, asto be felt
and
assimilated
by
these
peoples:
it
was to become
a
considerable
art
f
their wn
cultural
nd
legalheritage,
and one
of he
many
actors
aving
he
way
o the
ventual
emergence
f
dynamic
Western
ocieties.
Spatial
Organisation
Traditionally,
he Roman
estate of
the
familia
was
nearly
small
erritorial
tate.
Redistribution
f and
was
a
necessary precondition
for a
more efficient
patial
organisation
nd
exploitation
f
resources. t
allowed
the
spread
of
settlement
n
newly
onquered
areas
and
an
effectiverbanisation.tssuccess eems tohavebeen ess
spectacular
n
terms f
enhanced
gricultural
roductivity,
since he
widespread
wo
fields
ystem
ith
allowwas
still
dominant n
most
areas,
hough
etailed
nvestigation
n
thevarious
regions
f
the
Empire
wouldbe
required
o
provide
clearer
icture.
Land
transferaw
developed
lowly,
oth n
rural
nd
urban
environments,
ith
the
gradual
demise of
the
political
ole ofthe
familia
and
of
the
dominance
f
the
paterfamilias.
sucaption, preadial
servitudes,
ledges,
mortgageswhose
very
ame n
Latin,
hypotheca,
eveals
Greek
influence),
nitially
used for
provincial
ands,
replaced
the
traditional
oman
land
transfer
rocedure
(fiducia)
which
had
probably
never
taken
root
in
the
easternhalf oftheEmpire.
Surface
aw
sprang
rom
he
need
to
remedy
he
anti-
economic
consequences
of
the
Roman
concept
of
territorial
ominance,
specially
n
urban
reas,
beginning
with
he
city
f
Rome
tself.
ny
new
property
r
structure
added,
built
or
annexed to
the
estate fell
necessarily
(ratione
naturali)
to
its
owner,
the
paterfamilias',
nd
therefore
new
building
could
not
but
belong
to
the
landowner.
But,
s
the
population
nd
the
physical
tructures
f
he
city
grew
apace,
this
old
legal
principle
was
liable
to
become
very
nconvenient:
and
n
Rome
was
soon
either
corporate
roperty
r
belonged
to
few
private
persons.
Therefore,
s was
ater o be done
n
London,
he
right
as
granted
o
other
eople
to build and to hold the
building
thus
erected,
or
limited imeor
n
perpetuity,
n
State-
owned and atfirst,hen n that wnedby hecities both
the
capital
and
the other
owns),
ater tillon
privately
owned
reas
too,
gainst
yearly
ent
pensio, olarium),
r
even
against
he
payment
f a
lump
sum,
e
by
ease or
sale.
Owner f the
superficies,
hat s to
say
of the
building,
was still
the
person
who owned the soil as
hitherto;
however
he user of
the
building
was
granted special
interdict
ower,
hat
he
might
ot be
deprived
f
the
right
tomake
use
(fruì)
f
he
building,
nd
finally,
lready
nder
classical
aw,
for he
build-up
urface
iven
n
perpetual
use,
an
actio in rem
r an utilis
vindicatio
ere
granted,
whereby
he user
of the
building
could not be
easily
ejected.
Within
he new
egal
system,
he
built-up
urface
endedup beingendowedof a vestedright,nd enjoying
the
same
legal
regimegranted
o the
owner n
plain
neighbourhood
elationships.
Primitive
uildings,
ften
mere
huts,
were
ndependent
from
ach
other.The
drive to an
increasingly
ivilised
urbanisation
nevitably
rought
bout a
closer
spatial
integration
f the
built-up
rea,
and
therefore
made it
necessary
he
establishment f
more
and
more
frequent
praedial
servitudes. he
Romans
grouped
them in
the
following
ategories,
n
chronological
rder
ccording
o
their
rigin:
(i)
drainage
ervitudes
iura
stillicidiorum),
(ii)
structural
ervitudes
iura
parietum),
(iii)
light,
ir
and
view
servitudes
iura
luminum).
To drainage ervitudes elongtheservitutestillicidii
fluminis,
e the
right
o
discharge
ainwater
irectly
r
by
means of
channels
on a
neighbour's
roperty,
nd
the
servitus
loacae,
hat s
to
say
the
right
o
discharge
black
waters .
The
second
group
ncludes
he
ervitus
igni
mmittendi,
which s
the
right
o
drive beam
into
neighbour's
all,
andthe
ervitus
neris
rendi,
e
the
right
o build
gainst
wall
or
a
pillar
of a
neighbour:
the latter
has
the
responsibility
o
keep
the wall
or
pillar
n
good
order,
est
he
loses
any
right pon t;
the
ervitus
roiiciendi,
hich s
the
right
o
stick
ut n
a
free
pace
nside
he
neighbour's
property,
or
nstancewith
balcony,
he
ervitus
rotegendi,
which
s
the
right
o
stick
ut
above a
covered
pace.
The third roup ncludesall servitudeswhich im at
insuring ir,
light
and
view.
The
right
to
prevent
a
neighbbour
rom
aising
building
s
the
ervitus
ltiusnon
tollendi.
he
right
o
demand
that
he
neighbour
bstain
from
building
structures
which
would
lessen
light
or
obstruct
heview
makes
up
the
wo
ervitudes e
uminibus
officiatur
nd
ne
prospectui
fficiatur.
he
servitus
uminum
or
luminis
mmittendi
s
the
right
o
open
windows n
a
common
wall
or in
the wall
of
a
neighbour.
Some
urban
ervitudes
rethe
opposite
f
he
previous
ones,
or
t
east
ppear
o
be so in
Justinian's
ode,
such s
the
ervitus
tillicidii
elfluminis
on
vertendi,
hichs
the
right
o
receive he
waters
discharged
n
the
neighbour's
8/10/2019 _jstor_Roman Law and Political Control - From a Primitive Society to the Dawn of the Modern World
http://slidepdf.com/reader/full/jstorroman-law-and-political-control-from-a-primitive-society-to-the-dawn 9/11
338
GeoJournal 3.4/1 94
property
n order
to
resupply
water
tanks or
for
other
purposes,
he servitus ltius
tollendi,
fficiendi
uminibus
vicini,
e
the
right
o increase
he
height
f a
building,
o
obstructhe ight o a neighbour,nlessopposing easons
of
public
nterest xist.
The evolution
f a normative rameworkuch
as that
cursorily ighlighted
bove
is doubtless basic reference
point
for the
development
f
spatial organisation
nd
planning
f a
sophisticated
ature.
Discussion
One
point
of caution
o be
borne n mind s
that he
laws themselves
nly
ell us
how the
society
hould have
beenaccordingothe egislators, hilewe arenot as well
informed
s
we could
wish
oncerning
ctual
practice.
or
instance,
he
uthority
f
he
paterfamilias
ight
e
greatly
oppressive
n
theory,
ut n fact
he short
uration
f
the
average
human ife
pan
n ancient
imes iberated
great
many iliifamilias
rom
t at an
early ge.
Nevertheless
he
unfolding
f
the
legislation
ells
us,
though
ndirectly,
great
eal
about
changes
oing
n
in the
ocial and
spatial
system.
It would
be
highly
rewarding
f we could
link
information
rom
the
development
f
Roman
Law to
actual
data
on
spatial
organisation.
t
is
regrettably
impossible
o do
so,
as
archaeological
nformation
re
by
no
means uited
o
the task.
n
particular,
hough
hysical
structuresfprimitiveomedating ack othe8 h entury
BC
(including
erhaps
Romulus'
hut)
have
actually
een
discovered,
t s
mpossible
o
pinpoint
ribal
reas
within
t
and
follow
he
breaking
p
of
uch reas nd
the
unfolding
of
the
privatisation
rocess.
he
Roman
tabularium,
e
the
Land
Office,
here anded
properties
ere
recorded
nd
mapped,
was
destroyed
y
barbarian
illages
t the
fall
of
theWestern
mpire:
ts
bronze
maps
must
have
gone
to
some
obscure
foundryong ago.
The
Forma
Urbis
Romae,
dating
ack
to about
200
AD,
whose
marble
ragments
re
preserved
nthe court
f
the
Museo
Capitolino
n
Rome,
also
can tell
us
nothing
f he
patial
rocesses
ighlighted
above.
So we have
to be
contented,
t least
for
he time
being
nd
perhaps
or
ood,
with
what
nformation
anbe
gleanedfrom hesurvivingexts f RomanLaw. Luckily,
eloquence
was
highly
egarded
y
the
Romans,
nd
their
laws
are
eloquent
enough.
It
may
be useful
o consider
ssuesthat
ould
be
taken
and
objections
hat
could
be
plausibly
aised
against
n
approach
o
geography
hich
might
ppear
highly
ersonal,
perhaps
oo
much
so.
For
instance,
his
paper
could
be
regarded
s
rather
noriginal
since
Roman
Law
s after
ll
a
very
well
known
subject),
not
sufficientlyeographic,
and/or
invading
an
alien
field
and
dealing
with
it
superficially
if
for
no
other
reason,
due
to
the
lack
of
sufficient
pace),
at
best
it could
be deemed
to be
far
removed
rom
resent-day
ressing
roblems.
These
dangers
were
ssiduously
orne
n
mind
hrough-
out the
production
fthis
paper.
Now
-
though
xcusatio
non
petita,
ccusatio
manifesta
such
objections
mustbe
answered n order o putthepaper n itsproper ontext.
It would be
preposterous
nd
totallymisplaced
ndeed
to claim
bringing
ny
original
ontribution
o
Roman
Law
studieshere:
the
goal
is rather o see
what
ight
Roman
Law can
shed
upon
cultural
rends
ealing
with
political
control,
evelopment
nd
spatial organisation.
In
this
egard,
uch n
approach
an
hardly
e
regarded
as
un-geographic.
oreover,
he
paper
s not
an isolated
effort,
ut a
part
f n
attempt
o understand
evelopment
processes
ccording
o a
geographic
heoretical
ramework
(Biagini
1981).
Is Roman
Law an alien
field
to be avoided
by
geographers?
aw
in
general
provides
us a
valuable
perspective
or
n
understanding
f how
people
live,
nd
interact,ndRomanLaw s noexception.fweare tostudy,
as
geographers,
he
life,
work
and interactions
of
humankind,
we
cannot
afford
eaving
Law
out of
the
picture.
We
may
not
be
particularly
earned
n t and
many
details
will
surely
scape us,
but we
may
be able
to catch
what
s essential
o understand
evelopment
rocesses,
ot
necessarily single-handed
but
within
an
appropriate
interdisciplinary
o-operation.
Is the
development
f
RomanLaw so
very
ar emoved
from
resent-day
oncerns?
ollowing,
lbeit
ursorily,
ts
historical
nfolding
e
can achieve
an
understanding
f
some
basic
social
features
closely
linked
to human
attitudes
towards
development.
t is
therefore
ighly
relevant
o ask:
could
development,
s
we understand
t
today,take place in a societysteeped into tribaland
extended
amily
tructures
nd
ways
f
hinking
s
Roman
society
nitially
as?
Again:
was
not
a
gradual
nd
radical
structural
hange
ver
many
enturies
orely
eeded
f he
preconditions
o
an
openness
to
modern
development
were
to
be
achieved?
Certainly,
uch
changes,
f taken
alone,
were
by
no
means
sufficient,
ut
they
were
a
very
necessary art
of
a still
broader
process
of
change.
How to
explain,
then,
the
astounding
success
in
development
chieved
y
ocieties
hat
ever
new
Roman
Law?
Themost
outstanding
ase
in this
egard
s
certainly
that
of
Japan.
But no one
would
say
that
development
paths
are uniform
hroughout
ll humankind.
here
are
certainly
any
ways
to achieve
broadly
imilar
oals.
The
key o an understandingfdevelopments surely hat f
studying
ach
cultural
radition
n
its own
terms,
hereby
drawing
onclusions
nly
on
the
basis of
generalisations
form
omparative
mpirical
esearch.
Roman
Law,
and
its
age-long
process
of
change,
an
yield
useful
glimpses
n
how
attitudes
nd
cultural
alues
not
hostile
to
development
an
arise
and
grow
to full
maturity.
t therefore
an
help
though
y
no
means
lone
-
to
understand
owthat
art
f
Europe
which
ameunder
its
directnfluence
as
able to
achieve
ultural
raits
pen
to socio-economic
nnovations
nd
development.
One
finalcomment
s
in order
as
to the time
scale
needed
to
hatch
ignificant
ultural
hange
aving
he
way
8/10/2019 _jstor_Roman Law and Political Control - From a Primitive Society to the Dawn of the Modern World
http://slidepdf.com/reader/full/jstorroman-law-and-political-control-from-a-primitive-society-to-the-dawn 10/11
8/10/2019 _jstor_Roman Law and Political Control - From a Primitive Society to the Dawn of the Modern World
http://slidepdf.com/reader/full/jstorroman-law-and-political-control-from-a-primitive-society-to-the-dawn 11/11
340
GeoJournal
3.4/1994
Calderini,
.: Storia i Roma. Severi. a crisi
ell'Impero
el
II
secolo.
Capelli,
Bologna
1949.
Cantarella,
.: La vita elle
donne, p.
557-608.
n:
Momigliano,.;
Schiavone, ., (eds.), 4thvol., Storiadi Roma,Caratteri
morfologie.
989.
Capogrossi
olognesi,
.: La città la sua
terra, p.
263-289.
n:
Momigliano,
.; Schiavone, ., eds.),
1st
vol.,
Roma
n
Italia.
1988.
Cassola,
F.: Lo scontro ra
patrizi plebei
e
la
formazione ella
nobilitas,
p.
451-481.n:
Momigliano,
.; Schiavone, ., eds.),
1st
vol.,
Roma
n
Italia.
1988.
Ciccotti,
.: Il tramonto ella schiavatù el mondo
ntico,
vols.
Laterza,
ari
1977.
Coarelli,
.
Demografìaterritorio,
p.
17-339.n:
Momigliano,
.
Schiavone, ., eds.),
1stvoi. Roma
n Italia.
1988.
Cowell,
F. R.: Cicero and the Roman
Republic. Penguin
Harmondsworth
968.
Cracco
Ruggini,
.: La città omana
ell'età
mperiale,p.
127-152.
In:
Rossi,P., ed.),
Modelli
di città.
inaudi,
orino 987.
Cracco
Ruggini,
.: La città
mperiale,
p.
201-266. n:
Momigliano,
A.; Schiavone, ., eds.),4th ol., Caratterimorfologie ,989.
Dagron,G.:
a
città
izantina,p.
153-174.In:
ossi,
.
ed.),
Modelli
di città.
inaudi,
orino
987.
De
Martino,
.: La costituzione ella
città,pp.
345-365.
n:
Momigliano,
.;
Schiavone, ., eds.),
1st
vol.,
Roma
n
Italia.
1988.
De
Martino,
.:
Il
modello
della
città-stato,p.
433-458.
n:
Momigliano,
.; Schiavone, ., (eds.),
4th
vol., „Caratteri
morfologie
989.
Di
Marzo,
.: Istituzioni
i diritto
oamno,
th d.
Giuffrè,
ilano
1946.
DTppolito,
.: Le
XII Tavole:
l testo la
politica, p.
397-413.
n:
Momigliano,
.; Schiavone, ., eds.),
1st
vol.,
Roma
n Italia.
1988.
Drinkwater,
.F.:
L'urbanizzazione
n
Italia
e nelle
regioni
occidentali
ell'Impero,
I mondo i Roma
mperiale,p.
24-60.
In:
Wacher,., ed.),
2nd
vol.,
Vita rbana
rurale ,
aterza,
ari
1989. translatedrom nglish)
Ducellier,
.
(ed.):
Bisanzio.
inaudi,
orino 988.
translated
rom
French)
rerenczy,
.: tiom
the ancian
Mate o
me rancio-FieDeian
Mate.
Akadémiai
iadó,
Budapest
976.
Ferluga,
.:
Bisanzio:
ocietà stato.
ansoni,
irenze1974.
Garnsey,.;
Sailer,
.: Storia ociale
dell'Impero
omano.
aterza,
Bari1989.
translated
rom
nglish)
Green,
.
Diritto sistema
egale
nel
Principato,
n:
Wacher, ., ed.),
Il mondo
di Roma
mperiale,
nd
vol.,
Vitaurbana
rurale, p.
129-146
aterza,
ari
1989.
translated
rom
nglish)
Hassall,
M.: Romani
non
Romani,p.
165-182.
n:
Wacher,
.
ed.),
3rd
vol.,Economia,
ocietà
religione,
aterza,
ari
1989.
Heuss,
A.: Römische
eschichte.
estermann,
raunschweig
964.
Hopkins,
M.K.:
Elite
mobility
n the Roman
Empire.
Past and
Present
2,
12-26
1961)
Hopkins,M.K.: Socialmobilityn the aterRomanEmpire: he
evidence
f Ausonius.
lassical
Quarterly
1,
239-249
1965)
Hopkins,
M.K.: Economic
rowth
nd
towns
n
classical
ntiquity,
pp.
35-77.
n:
Abrahams, .; Wrigley,
.A.
(eds.),
Towns
nd
,
societies.
niversityress,
Cambridge
980.
Jones,
. H. M. Thedecline
f he
ncient
orld.
ongman,
reen
Co.,
London1966.
Jones
.
H. M.:
The caste
ystem
n the
ater
oman
mpire.
irene,
8,
79-96
1990)
Kiechle,
.: Römische
Geschichte,
vols.
Kohlhammer,tuttgart
1967-69.
Kornemann,
.: Römische
eschichte,
vols.
Kröner,
tuttgart
965.
Levi,
M.A.: L'Italia ntica.
Mondadori,
ilano 1974.
Levi,
M.
A.; Meloni,
.:
Storia omana
alle
origini
l
476
d.C,
5th
ed.
Cisalpino-Goliardica,
ilano
1986.
Liebesschuetz,
.H.W.G.: Governo amministrazioneel tardo
Impero fino l 476d.C.)In: Wacher,. ed.), lmondo i Roma
imperiale,
nd
vol.,
Vitaurbana
rurale ,p.
147-165
aterza,
Bari
1989.
translated
rom
nglish)
Macaulay,
.:
City: history
f Roman
planning
nd construction.
Houghton
Mifflin,
oston
1974.
Mango,
:
Byzantium.
he
Empire
f heNewRome.Weindenfeld
&
Nicolson,
ondon
1980.
Mazzarino,
.: La finedel mondo ntico.
Garzanti,
ilano
1959.
Musti,
.: Lotte ociali storia
elle
magistrature,
p.
367-395.n:
Momigliano,
.; Schiavone,
., eds.),
1st
vol.,
Roma
n
Italia.
1988.
Nicolet,C:
I
modello
ell'Impero,p.
459-489.
n:
Momigliano,.;
Schiavone,
A., (eds.),
4th
vol.,
Storia
di
Roma,
Caratteri
morfologie,
989.
Nisbet,
. A.:
Kinship
nd
politicai
ower
n
first
entury ome, p.
257-271.
n:
Cahnman,
W.
J.; Boskoff,
.,
eds.),
Sociology
nd
history: heory
nd research. ree
Press,
New York1964.
Ostrogorsky,.: Storiadell'Impero izantino, 0thed. Einaudi,
Torino 981.
translated
rom
German)
Paribeni,
.: Storia
i Roma.Da Diocleziano
lla caduta
ell'Impero
d'Occidente.
appelli, ologna
1942.
Peribeni,
.:
Storia
i Roma.L'età
di Cesare di
Augusto.
appelli,
Bologna
1950.
Peribeni,
.: Storia
di Roma. Le
origini
il
periodo regio.
La
Repubblica
ino
lla
conquista
el
primato
n Italia.
Cappelli,
Bologna
1954.
Percival,
.:
Seigneurial
spects
f
Late Roman state
management.
English
Historical eview
4,
449-473
1969)
Percival,
.:
La villa n talia
nelle
province,
p.
33-256.
n:
Wacher,
J.
ed.),
Il
mondo
di Roma
mperiale,
nd
vol.,
Vita urbana
rurale.
aterza,
ari
1989.
Pleket,
.: Sociale tratificatien sociale
mobiliteit
n de Romeinse
keizertijd.ijdschrift
oorGeschiedenis
4,
215-251
1971)
Rostovzev,
.:
Storia conomica
sociale
deli-impero
omano.
a
Nuova talia, irenze1980. translatedrom nglish)
Runciman,
.: La civiltà izantina.
ansoni,
irenze 954.
translated
from
nglish)
Sailer,
.:
rapporti
i
parentela
l'organizzazione
amiliare,p.
515-
555. n:
Momigliano,
.;
Schiavone, ., eds.),
4th
ol.,
toria
i
Roma,
Caratteri
morfologie,
989.
Santalucia,
.: Dalla vendetta
lla
pena,
p.
427-449.
n:
Momigliano,
A.;
Schiavone, .,
(eds.),
1st
vol.,
Roma
n Italia.
1988.
Schiavone,
.:
Il
pensiero iuridico,
p.
879-893.
n:
Momigliano,
.;
Schiavone,A., (eds.),
4th
vol.,
Storia
di
Roma,
Caratteri
morfologie,
989.
Seyfahrth,
: Soziale
Fragen
der
spätrömischen
aiserzeit
m
Spiegel
desTheodosianus.
Mann,
Berlin
963.
Torelli,
M.: Dalle
aristocrazie
entilizie
lla
nascita ella
plebe,
pp.
241-261.
n:
Momigliano,
.;
Schiavone,
., (eds.),
1st
vol.,
Roma
n Italia.1988.
Torelli,
M.: Le
popolazioni
dell'Italia
ntica:società
e
forme
i
potere,p.53-74.n:Momigliano,.; Schiavone, ., eds.),1st
vol.,
Roma
n Italia. 1988.
Toynbee,
.: Constantine
orphirogenitus
nd
his world.
Oxford
University
ress,
Oxford 973.
Vera,
. La
società
el
Basso
mpero.
uida
torica critica.
aterza,
Bari 1983.
Vogt,
.:
Die römische
epublik,
vols.
Herder,
reiburg/Br.
962.
Vogt,
.: Der
Niedergang
oms.
Metamorphose
er
ntiken
ultur.
Kindler,
ünchen 965.
von
vànka,
.: Römerreich
nd Gottesvolk.
as
Glaubens-,
taats-
und
Volksbewußtsein
er
Byzantiner
nd
seine
Auswirkungen
auf die
ostkirchlich-ostweuropäische
eisteshaltung.
lber,
Freiburg/Br.
ünchen 968.
Wittfogel,
.H.: Oriental
espotism;
comparative
tudy
f total
power.
ale
Universityress,
New
Haven
1957.
