Sommers.inddBRÉVIAIRE D’ALARIC
Session 1 : Grèce ancienne [présidence : Sabine R. Huebner]
10:00 - 10:30 Heinz Barta (Innsbruck) “Genese des griechischen
Erbrechts und des Testaments”
‘The development of Greek inheritance and wills’
In Greece, archaic religions and traditions of ancestor worship
were still as important to the house/oikos and family (and
therefore to law) as the succession to an estate. First of all I
will examine the prior conditions that led to the development of
inheritance law and give an account of this development thereby
differentiating between intestate inheritances and testamentary
inheritances. Inheritance law is one of the oldest areas of the
law, after family law and property law. The political community
took part in deciding the position of individual family members in
a family and a line of descent. Solon strengthened and expanded the
legal status of individual citizens without impairing family bonds.
A private- ly-developed legal body was an essential condition for
the political development towards democracy. Originally religion,
customs, morals and law were intrinsically interconnected; a
normative amalgam existed, referred to as Nomological Knowledge by
M. Weber. The separation of these elements happened gradually over
a long period of time. – Solon set the ball rolling by allowing
adoptive sons to be chosen over biological children (by the hosts/
kyrios). The question of Solon’s, ‘Law concerning wills’ is a
disputed one, I follow the opin- ions of E. F. Bruck and R.Maschke
whereby Solon created neither the Adoption Testament, nor the
Legacy Testament, but did encourage their development. Jan Assmann
has labeled it as: ‘death as a generator of culture’. – Inheritance
law is closely connected to death and, together with Family Law,
generates the norms by which a society lives. – Adoption came about
in order to ensure the continuation of family and Oikos (Family
Law) and from that, (firstly publicly) the Adoptive Will was
developed (Inheritance law). – In addition to the Adoptive Will,
the Will of Bequest was created (from endowment upon death) and
with re- gards to this the Execution of the Will evolved.
Chronologically, the two forms of will, from which the modern will
developed, emerged between Solon’s legislation (594/3 v.: terminus
post quem) and the last decade of the fifth Century (terminus ante
quem). In my summary I examine ‘Parental Separation’, ‘Lawful
Inheritance’ (where the bloodline is known) and the ‘Development of
the Will’ (as a one sided testamentary instruction).
10:30 - 11:00 Martin Steinrueck (Fribourg) “ ‘Le dernier souper du
Cyclope’ : l’iambe archaïque grec comme expression d’un groupe de
jeunes hommes sans héritage”
En continuation d’un livre, cette intervention tente d’expliquer
les problèmes d’inter- prétation de Théognis 731-752, 1123ss.,
Odyssée 2.17-23 ainsi que de plusieurs textes de la tradition
iambique par une hypothèse selon laquelle les « jeunes hommes »,
néoi andres, célibataires, les deuxième-nés, les fils illégitimes
sans héritage ne créaient pas seulement leur propre discours
(l’iambe), mais aussi, comme Platon le dit, une force politique
parfois dangereuse pour la cité.
11:30 - 12:00 Beate Wagner-Hasel (Hannover) “Agamemnons Töchter.
Erbe und Macht in Homerischen Epos”
Im 9. Gesang der Ilias macht Agamemnon dem zornigen Achill ein
Versöhnungsange- bot. Er bietet ihm die Heirat mit einer seiner
Töchter an und die Verfügung über sieben Städte. Es wird in der
Forschung kontrovers diskutiert, ob es sich bei dem Angebot um eine
überdimensionierte Mitgift handelt oder ob beides, Heirat und
dieVergabe von sieben Städ- ten, gar nicht zusammen gehören. Die
Deutung hängt eng mit der Frage nach dem Charak- ter des
Homerischen Erb- und Ehesystem zusammen. Der Vortrag beschäftigt
sich speziell mit der Frage, wie Rangpositionen in der Welt des
frühgriechen Epos vererbt werden und welche Rolle Töchter dabei
spielen.
12:00 - 12:30 Brenda Griffith-Williams (University College London)
“Matrilineal Kinship in Athenian Inheritance Disputes : Two Case
Studies”
Succession rules tend to reflect the normal family structures in a
particular society, but their rigid application is sometimes
perceived as unfair, especially when more complex patterns of
kinship are created by remarriage after death or divorce.
The Athenian order of collateral succession gave precedence to
those related to the deceased on his father’s side. Even a
homometric half-brother ranked lower than a patrilineal cousin,
reflecting the reality that homometric half-siblings belonged to
different oikoi. When a widow or divorcee remarried, the newly
constituted household might include her new husband’s children by
different wives, but any children from her previous marriage would
normally remain in their paternal oikos, under the tutelage of a
guardian if their father had died while they were minors.
We know of two Athenians whose unusually close ties of affection
with their stepfa- thers led to conflict between their
(patrilineal) next of kin and a matrilineal kinsman whose blood
relationship to the deceased was closer. In Isaios 9, Astyphilos
grew up in the same household as his homometric half-brother
because his mother’s second husband was also
his guardian. His estate was contested by the half-brother against
a patrilineal first cousin. In Isaios 7, Apollodoros was brought up
after his father’s death by a guardian who tried to defraud him of
his inheritance, so his stepfather took him into his own family and
helped him in successful legal action against the guardian. When
Apollodoros’s only son died unex- pectedly, he turned to his
homometric half-sister to give him an adopted son. The adoption was
challenged after his death by a patrilineal cousin.
We cannot tell how typical these cases were, but the forensic
strategies adopted by the two speakers provide some insight into
the tensions created by the claims of matrikin in a predominantly
patrilineal inheritance system.
Session 2 : Judaïsme [présidence : Carlos Sanchez Moreno
Ellart]
14:30 - 15:00 Giles Rowling (Macquarie University, Sydney)
“Babatha’s Archive : Inheritance disputes in Second Century Roman
Arabia”
At some time after the establishment in 106 CE of the former
Kingdom of Nabataea as the Roman province of Arabia, Babatha and
Yehudah, Jewish residents in the Province, mar- ried under a
Ketubbah or marriage agreement. Babatha had an infant son by her
first husband and Yehudah a daughter Shelamzion by his first and
concurrent wife Miriam. While married to him, Babatha lent money to
Yehudah.
Babatha brought proceedings before the provincial Governor for the
payment of a greater sum for maintenance of her son and apparently
intended that he should proceed against them after the termination
of the guardianship.
After his death Babatha seized date groves formerly the property of
Yehudah to se- cure her rights under her Ketubbah and her unpaid
loan to him and Miriam had also seized property of Yehudah. Babatha
and Miriam brought proceedings against each other before the
Governor complaining about their respective seizures, in which
Miriam asserted that Babatha had no rights against the property of
Yehudah.
After her marriage, Yehudah had given Shelamzion a courtyard, by
which he appears to have intended to make provision for her in case
he should have a son who would, under Mishnaic law, be his heir to
her exclusion.
The guardians of infant orphan nephews of Yehudah brought
proceedings before the Governor against Babatha to recover date
groves registered in her name by Yehudah assert- ing that they were
the property of the nephews. I argue that since Shelamzion was the
only child of Yehudah she was his heir, and not the nephews, and
that their claim was for a share in the property of the grandfather
of themselves and of Shelamzion, and that registration of the
groves in her name had given Babatha no rights in them.
15:00 - 15:30 Nicholas A. E. Kalospyros (Athens) “Towards the
Allegory of Idealized Oikos : The Nuclear and Extended Family
Versions, Their Succession and Inheritance Issues and Their
Cognates in Philo Judaeus”
Beyong the notion of allegory and allegoresis as hermeneutic
techniques we could trace interesting elements concerning nuclear
and extended family structure and relationships (esp. marriage,
parents and children, extended kin, gender roles) in the numerable
treatises of the Jewish-Hellenistic philosopher and writer Philo of
Alexandria, so as to verify the thematic view of family-oikos in
the Graeco-Roman world, under the keen spectrum of a prolific
author and post-Platonic allegorist. The perception of
family-beyond-household bounds, along with the study of relevant
inheritance and succession conflicts and family cognates in the
Philonian world, seems like an epitome of the Biblical creation,
whilst at the same time enables us to form linguistic and stylistic
devices of recognizing his theory of family membership and in
Hellenistic antiquity. My paper aspires to set off the
archaiognostic reading of an allegorical hermeneutic tradition
including the formation of idealized oikos and its succession
patterns, upon the philological documentation which is necessary
for the establishing of such a study direction. The allegorical
reduction of oîkos enables the bridging of the gap between the nat-
ural creation and the realm of universal nature amidst the unique
nature (physis) of humanity. Oîkos, then, is metaphorically
elevated above any other typical thesmos physeos, just like each
one of the ten commandments is called. Philologically speaking and
in Philo’s terms, we have reached the literary scope of
transcendental expression in Graeco-Judaean literature.
Session 3 : Rome [présidence : Mireille Corbier]
16:30 - 17:00 Amber Gartrell (Oxford) “Unequal Brothers : An
Exploration of the Inheritance and Succession Strategies of
Imperial Heirs under Augustus”
The development of a succession policy was crucial for Augustus in
order to des- ignate an heir to his extraordinary collection of
clients, powers and honours. However an inherent issue of any such
policy was that there was no constitutional basis for either Au-
gustus’ role or for a designated successor to it. This unusual
situation therefore raises ques- tions of to what extent
traditional inheritance policies and familial legislation should be
considered applicable to the imperial succession.
This paper shall investigate an inheritance strategy in which young
men of the imperi- al household were paired as heirs. Such pairings
include Tiberius and Drusus the Elder, Gaius and Lucius Caesar, and
Germanicus and Drusus the Younger. Through an analysis of the com-
parative prominence of these heirs, I shall suggest that such
pairings were often unequal. This paper shall examine why one heir
might be favoured above another, considering the difference between
biological and adoptive relationships and the possible benefit of
primogeniture.
This paper shall analyse the relationships between the heirs, the
Emperor and other members of the imperial family. I shall explore
the conflicts which arose and the strategies which developed to
cope with them during the first imperial succession. I shall focus
upon a particular strategy designed to compensate for the
difficulties of unequal pairings: the com- parison of the heirs
with the Dioscuri, brother gods famed for their fraternal piety.
Through an exploration of these paired heirs, the paper shall shed
light upon the relationships, con- flicts and strategies of the
imperial family during the development of the first imperial
succession policy.
17:00 - 17:30 Coen van Galen (Nijmegen) “Keeping the Family Spirit
alive : Roman Women and Inheritance Conflict”
This paper will examine inheritance conflicts involving Roman
female citizens in the late republic and the way in which Roman
legislators tried to solve these conflicts. Problems occurred as a
result of the change from cum manu to sine manu marriage from the
second century B.C. onwards. This change had a profound effect on
inheritance practices, because women remained part of their familia
of birth upon marriage and were, therefore, sui here- des to their
pater familias. This led to a series of problems which did not (or
scarcely) exist within a cum manu marriage.
In these conflicts, not only the material side of inheritance was
at stake, but a non-ma- terial side as well: as sui heredes, women
inherited not only property but also the sacra privata, the
responsibility for the family spirits and rituals. As women could
not have family mem- bers in potestate, this was seen as an
undesirable situation, because it meant the end of the family line.
On the other hand, women who became sui heredes could become the
victims of ‘inheritance raiders’, who tried to force themselves
upon her as her tutor in order to claim her property after death.
The problems which resulted from this change in marriage tradi-
tion were eventually solved by legislation and social convention.
The analysis of this paper leads to renewed insights into the
effects of the change in marital tradition on Roman inher- itance
law and the conflicts that could occur from the Roman concept of
sacra.
17:30 - 18:00 Elisabeth Herrmann-Otto (Trier) “Sklavenfreilassungen
und die Interessen der Erben”
Slave liberation and the interests of the heirs
Roman slave liberation was legally strictly regulated and was
socio-politically and eco- nomically very significant. Emancipation
played a large role in the relationship between mas- ters and their
slaves, especially in its fully legitimate form which granted Roman
citizenship as well as the complete freedom of the slave. On the
other hand, the ‘good conduct’ of the slave opposed the master’s
emancipation contract, in that the Insitute of Slave Emancipation
itself contributed to the continuation of slavery. Whenever the
release of a slave was carried out, it was usually in both parties’
best interests: the master benefited from social prestige and
economic gain; the slaves benefited from their personal freedom and
economic independence.
Whether the release of slaves was considered so positively by
descendants and heirs however, has not until now been extensively
researched. The limitations of testamentary emancipation of slaves
in the Lex Fufia Caninia should be kept in mind while examining the
underlying motivations of these Augustan laws with regard to the
state, society and family. In a second step, the various forms of
slave release that the descendants and/or heirs dealt with will
thereupon be reviewed, whether the releases were accepted or
whether strategies were developed to postpone them, avoid them or
to declare them invalid. In the process, priority is given to the
manumissio testamento, fideicommissaria, condicione etc. The many
sta- tus trials (causae liberales), the countless bona fide
servientes and the statu liberi shed light on these manipulation
techniques. To finish, I will broach the issue of whether and under
what conditions the libertus orcinus constituted an act of outright
defiance towards the successors.
Vendredi 22 mars 2013
Session 4 : Antiquité tardive [présidence : James
Howard-Johnston]
09:30 - 10:00 Richard Payne (Princeton) “Inheritance Law and
Practice among the Sassanids”
Iranian society in late antiquity was thoroughly patrilineal. The
spirits of paternal ancestors shaped an individual’s character,
dispositions, and capacities for action. Landed wealth was in large
measure locked into patrimonies only male descendants could
inherit. Lineage was thus the principal determinant of status, and
only men of noble lineage – whether grand, middling, or lesser –
were worthy of wielding imperial authority.
On account of the patrilineal structure of social, political, and
economic relations, Iran’s aristocratic hierarchies are often
regarded as stable, even fixed. But two phenomena put patrimonies
and patrilineages continually in peril. On the one hand, the
vagaries of male death frequently left noble houses headless and
sonless. On the other, paternal uncles, brothers, and other
patrilineal kin vied – sometimes violently – for control of their
patrimo- nies. The present paper will examine the corpus of Iranian
law as a package of institutions developed on the basis of
Zoroastrian cosmological thought to guarantee the uninterrupt- ed
transmission of the lands and lineages on which the stability of
the imperial order was predicated. Institutions of inheritance will
emerge as central features of Iran’s political culture late
antiquity.
10:00 - 10:30 Carlos Sánchez-Moreno Ellart (Trier) “Late Antique
Law on Inheritance”
The late antique law of inheritance has been tackled with the
contrast between classi- cal Roman law and vulgar Roman law as a
starting point. My paper is focus on the decadence of the socalled
classical Roman will and the emergence of a will defined mainly by
the impe- rial constitutions enacted in the fourth century AD as
free from its traditional requirements. The usual approach to this
period pinpoints some features from this legislation and from the
documents as elements of the so-called ‘Roman vulgar law’. This
stylistic approach, which is essentially right, sometimes proves to
be insufficient since it ignores that the late imperi- al
legislation just developed the tendencies incorporated in the law
of successions from at least the beginning of the 1st century AD. I
will try to point out the internal logic of this development and to
explain in which logical framework some of these legal developments
can be understood.
10:30 - 11:00 Judith Evans-Grubbs (Emory) “Illegitimacy and
Inheritance in late Roman Law”
Illegitimate children (those born outside of legal marriage) have
posed a problem for family inheritance strategies in most western
societies: how to safeguard the transmission of paternal property
to the next generation of lawful heirs while satisfying emotional
or moral claims from children born in concubinage or even in
short-lived extramarital rela- tionships? This paper looks at the
changing legal attitudes toward the rights of illegitimate children
in late Roman law, and what those changes meant for individual
families. I focus mainly on the situation of naturales,
illegitimate children of men (particularly men holding some
official position) from unions with slaves, former slaves, or other
lowborn women with whom marriage was forbidden or strongly
discouraged.
In earlier Roman law, although a man’s illegitimate children had no
inheritance rights upon intestacy, he might leave them a legacy in
his will (after freeing any slaveborn children). But beginning with
Constantine, the legal attitude toward illegitimate children
changed and underwent many fluctuations until Justinian removed all
marriage restrictions between those of different status and enabled
naturales to inherit. Extant legislation from the 4th-6th centuries
allow us not only to follow these legal changes but to see the
personal relationships and family disputes behind them. My paper
uses the laws and non-legal evidence like Liba- nius and patristic
writers, to explore these family dynamics. I will conclude with a
brief look at the situation of illegitimates in early modern
Florence, where the presence of domestic slavery and the use of
Roman law created conditions comparable to those in late
antiquity.
11:30 - 12:00 Sabine R. Huebner (Rome/Berlin) “It is a difficult
matter to be wronged by strangers, but to be wronged by kin is
worst of all – Inheritance and Conflict in Graeco-Roman
Egypt”
The life cycle of a household was tightly connected with the ways
in which resources were transferred between generations. These
property transmissions afflicted intergenera- tional, gender and
sibling relationships and were associated with negotiations about
rights and obligations of kin. Inheritance was only one, although
the most important one of them. Others were the allocation of
dowries upon marriage, gifts inter vivos, or retirement con-
tracts. In Roman Egypt, inheritance was partible and sons as well
as daughters inherited. Dowries for daughters were usually
subtracted from their share of the inheritance. Sons in- herited at
their father’s death, usually equally, at least if their father
died intestate. If a father wrote a will, the eldest son often
received a slightly larger share than his younger brothers, but
generalizations are not possible, and in general, partible
inheritance, even if not in its most radical form of complete
equality of all of the children, seems to have been the norm in
Roman Egypt. The Athenian concept of the πκληρος seems to have been
unknown in Graeco-Roman Egypt. Other than in classical Athens,
women in Roman Egypt could hold property in their own right and
daughters were able to inherit the entire patrimony if there were
no sons.
We have evidence from the New Kingdom and the Late Period for Egypt
that siblings held their inherited patrimony jointly and the eldest
son acted as trustee and administrator of the property for the
community of heirs, organizing the farming or leasing of the land
allocating to each of the siblings their respective revenues. If
the patrimony was to be di- vided among the siblings, the eldest
son received a double share and could choose first. In Roman times
a similar system seems to have been at play in the rural multiple
family house- holds consisting of several married brothers with
their families. Property was held κοινν κα διαρετον “jointly and
undivided”. Also here, the eldest acted as head of household and
represented the family to the outside world. The inheritance system
in Roman Egypt seems to have followed indigenous Egyptian roots
rather than Greek practice where only one son inherited and usually
at a certain point during his father’s lifetime, not just upon his
death.
In this paper I study among others a petition from late 3rd century
Oxyrhynchus in which a certain Aurelia Didyme asked the prefect for
recovery of her inheritance. Her moth- er and the latter’s two
brothers had held the property inherited from their parents jointly
which comprised a house, slaves, furnishing, and immovable and
movable goods, and had continued living together in their natal
home. When Aurelia Didyme’s mother died, howev- er, her two uncles
conspired to defraud the orphan girl of her rightful inheritance.
Aurelia Didyme starts her petition with the words: “It is a
difficult matter to be wronged by strangers, but to be wronged by
kin is worst of all.
12:30 - 12:30 Maria Nowak (Warszaw) (Warszaw) “The Non-Normative
Family in the Wills from Greco-Roman Egypt”
The purpose of the paper is to present the legal situation of
non-normative families in Graeco-Roman Egypt in the light of papyri
concerning testaments and succession. One of the most important
juridical sources regarding this problem is Gnomon of Idios Logos.
It contains information on law of the personal status and
succession in Graeco-Roman Egypt. Among these norms we find direct
and indirect references to the legal situation and testa- menti
factio passiva of the children born out of wedlock (i.e. § 11–13,
18, 23, 34, 35, 38, 39, 45–48, 50, 54).
Gnomon of Idios Logos is not entirely clear. It offers as questions
as the answers. We do not know whether children born in the unions
not recognized by Roman rulers were entitled to succession after
their parents, whether their status somehow implied their ability
of ac- quiring goods via wills composed by their parents, and how
far (if at all) it was restricted by the rights of legitimate
children. On the other hand, the extramarital children are present
in the texts of legal practice, viz. wills from Hellenistic and
Roman Egypt (some testaments belonging to P. Petrie I2 roll, SB
XVIII 13168, P. Köln II 100, P. Mich IX 549, P. Sijp. 43, P. Oxy. I
104, PSI XII 1263, P. Col. X 267, FIRA III 47, BGU I 326), which
need to be compared with the legal position of extramarital
children in the testamentary succession as evinced in the juridical
sources.
Session 5 : Byzance [présidence : Frédéric Bauden]
14:30 - 15:00 James Howard-Johnston (Oxford) “Partitive Inheritance
in Principle and Practice in 11th century Byzantium”
The paper will have five sections:
1. Introduction to the Peira of the Magistros Eustathios Romaios, a
unique collection of judgements and legal opinions of an early
eleventh century high court judge in Byzan- tium, which survives in
a single manuscript dating from the first half of the fifteenth
centu- ry. Eustathios’ career is summarised, and something is said
about the character of the text. It should be stressed that
relatively little scholarly attention has been devoted to the
Peira.
2. A key principle of Roman law, that of the minimum legal portion
of an estate re- served for the children of the deceased, is traced
from its origin in the Lex Falcidia issued under Augustus to Late
Antiquity, when it was incorporated into the Corpus Iuris of
Justini- an, and beyond into the middle ages, when it reappears in
the Ecloga promulgated by Leo III in 741 and in the Basilica, the
full compendium of law inherited from Rome, rearranged in 60 books
and translated into Greek, which was completed in the reign of Leo
VI (886-912).
3. The Magistros Eustathios’ interpretation of the Lex Falcidia is
examined, in par- ticular his decisions on what expenses were to be
deducted before the law was applied to the estate, what exactly
were the portions of varying numbers of children, by what
mechanisms the missing legal portion of a disinherited child should
be made up, the timing of the dis- tribution of legal portions and
the principle of equal entitlement on the part of daughters.
4. Some specific cases brought before Eustathios are examined, to
establish the de- gree to which legal practice conformed to the law
as codified.
5. Attention then turns to the principal social consequence of
partitive inheritance, the cohesion of kin groups at the level of
the peasant village and the great estate, and to the ways in which
this in turn restricted freedom of action on the part of the
crown.
15:00 - 15:30 Jean-Claude Cheynet (Paris) “Les monastères dans les
conflits d’héritage d’après les tribunaux ecclésiastiques (xie-xve
s.)”
La conservation des patrimoines obsédait les familles byzantines,
tout particulièrement quand elles avaient du bien et appartenaient
à l’aristocratie. L’entrée au monastère d’un héritier venait
troubler le bel ordonnancement de leur dévolution. Parfois la
création d’un monastère servait à consolider une fortune, mais le
plus souvent l’établissement se posait en rival des autres
héritiers. Il disposait d’une arme redoutée, la maîtrise des
prières pour le salut des défunts. Divers affaires permettent de
voir les différents cas de figure qui ont pu survenir, mais la
majeure partie sont des contestations portant sur des biens dotaux
ac- cordés aux monastères en l’absence d’héritiers directs. Ces
quelques exemples montrent la justesse de l’idée d’A. Laiou selon
laquelle les familles essayaient de limiter les divisions des
patrimoines familiaux et de les reconstituer après deux
générations. Les luttes les plus ar- dentes opposaient souvent des
cousins germains. Les jugements de Dèmètrios Chômatianos
constituent la source principale sur les querelles d’héritage,
suivi des décisions du tribunal patriarcal au siècle suivant.
Byzantine families were obsessed with preserving their inheritance,
especially when they owned properties and belonged to the
aristocracy. The entrance of an heir into a mon- astery disturbed
the beautiful ordering of property distribution among heirs.
Sometimes, the foundation of a monastery helped consolidate a
fortune, but more often, the monastery became a rival of the other
heirs. It had a really feared weapon: it controlled prayers for the
salvation of the dead. Various cases give an insight into the many
different scenarios that could occur, but, for the most part, the
most common situation was a dispute over the dowry granted to
monasteries in the absence of direct heirs. These few examples
support idea of A. Laiou’s idea that families tried first to limit
the partition of their patrimony and then tried to reassemble it
after two generations. The most ardent struggles often opposed
cousins. The main sources on quarrels about inheritance are
Demetrius Chômatianos judgments, followed by patriarchal court
decisions in the next century.
16:00 - 16:30 Olivier Delouis (Paris) “Distraire l’héritage :
monastères et héritiers à Byzance”
Si, pour une institution chrétienne, un don reçu de façon spontanée
ou par voie tes- tamentaire est un cadeau de Dieu, et si, pour un
donateur, ce même don doit permettre la rémission de ses fautes et
son salut par la prière perpétuelle pour son âme, en revanche, pour
la famille du donateur, la situation est toute différente. La
donation peut s’apparenter en effet à une distraction d’héritage, à
savoir à une séparation, à un retranchement d’une partie ou de la
totalité d’un bien normalement attendu par les héritiers légitimes.
Parce que dans les sources byzantines, les monastères – qui nous
intéresseront ici – ont plus souvent la parole que les héritiers,
nous connaissons assez mal les conflits familiaux entraînés par de
telles donations pieuses. Cependant, les actes de la pratique, les
typika ou règles de fondations mo- nastiques, ainsi que les actes
des tribunaux, permettent d’évaluer les difficultés entraînées par
une générosité trop personnelle. Nous présenterons quelques
exemples concrets, puisés particulièrement dans les archives du
Mont Athos, pour le Moyen Âge central et tardif, et nous tenterons
de voir quelles parades ont été trouvées par les donateurs pour
contrer leur plus grande menace : leur propre famille.
If, for a Christian institution, a gift received spontaneously or
by will is a gift from God, and if for a donor, that same gift is
meant to allow the forgiveness of his sins and bring his salvation
through perpetual prayer for his soul, for the donor’s family, in
contrast, the situation is quite different. The donation may be
similar in effect to a capture of inheri- tance, namely to a
separation, a retrenchment of part or all of a property normally
expected by the legitimate heirs. Because in the Byzantine sources,
monasteries – which interest us here – voice more often their
opinion than the heirs, we know little of the family conflicts
caused by such pious donations. However, legal documents, typika or
monastic foundations rules, as well as court’s decisions allow us
to assess the difficulties caused by an individual’ s too personal
generosity. We shall present some concrete examples drawn
particularly from the archives of Mount Athos, during the middle
and late byzantine periods, and we will see what parades were found
by donors to address the greatest threat to their donation: their
own families.
16:30 - 17:00 Thierry Ganchou (Paris) “L’héritage Goudélès à Gênes
: deux siècles de conflit familial (ca. 1423-1639)”
Samedi 23 mars 2013
09:00 - 09:30 Gerhard Lubich (Bochum) “Incestuous Marriage, Family
Murders and Civil Wars : Becoming an Heir in Merovingian
Times”
Succession within the roman imperial family didn’t rely on
biological fortuity alone: By including relatives by adoption,
in-laws and more distant kin, succession was subject to long- term
political planning. Medieval practice, in contrast, is usually
thought of as focussing on the “blood-line”, i.e. an exclusively
agnatic system of transfer from father to son(s), thus limit- ing
the royal family to a predominantly biological entity, dominated by
its male members.
This practice seems to have been taken to extremes by the
Merovingians, the first long-last- ing medieval dynasty: entitled
to succession and inheritance were not only legitimate sons, but
all male offspring; neither the status of the relation between king
an mother (marriage / con- cubinage) nor her social status played a
role. By focussing on the father-son succession alone, the
Merovingian family represented a self-sufficient entity without
genealogical ties to society. But as soon as the pater familias
demised, this construction proved to be substantially frail and
unfit to secure peace within the family. The remaining siblings
fought each other; uncles killed nephews, fathers their sons,
incestuous marriage occurred to secure inheritance. The resulting
instabilities qualified as bella civilia, hence transposing a
family affair to a “business of the state”.
The question pursued in this paper will not interpret these
shortcomings as a result of a “failed” state, but focus on the
underlying family model. At the transition to a post-roman society,
the model of the nuclear family as promoted by Christianity was not
yet established; parts of the Merovingians’ behaviour makes more
sense if regarded as derived not from “fam- ily” but from the
antique familia as the community surrounding the dominating pater
familias.
09:30 - 10:00 Ellen Widder (Tübingen) “Schicksalsschlag oder
Strukturproblem? Dynastische Brüche und Herrschaftssukz- ession im
Spätmittelalter”
A stroke of fate or a structural problem? Dynastic failures and
succession of power in the late middle ages
The dominant ruling system in the late Middle Ages was the dynasty.
This is taken to mean an aristocracy, based on kinship and
appointing power to a family group, the rule of which was passed
down from father to son or father to sons. This system was under
the constant threat of extinction by the absence of or the
premature loss of (male) heirs.
In previous research, the problem of looming or apparent dynastic
failures, or the end of a reigning family, has been the object of
our attention on several occasions; however the phenomenon and its
implications have not yet been analysed comparatively.
One of the SFB projects, funded by the German Research Foundation,
is dedicated to the exploration of this subject in the late Middle
Ages and is under my supervision at the Univer- sity of Tubingen.
In the conference contribution below various aspects of the
phenomenon are discussed: how did the various members of a ruling
family deal with the constant threat of the lack of an heir, did
they even really see it in this light, how was it interpreted and
how did they approach the problem? How did they deal with
infertility and were there alternative ways to secure the
continuation of a reign? The legal dimension of the issue is
certainly still the most familiar aspect (adoption, arrogation,
inheritance contracts), but levels of interpretation and approaches
to the problem could also be based on religious or familial
grounds. It is on these grounds that Rene’ Anjou’s enlightening
report lays its foundations.
In this paper various examples of aspects of this subject will be
discussed, both in their fundamental principles and from a European
perspective. In the process, the phenomenon of dynastic failure
will be considered value-neutral, and will be looked at from
multiple perspec- tives rather than being interpreted as simply the
driving force of constitutional developments.
10:00 - 10:30 Cameron Sutt (Austin Peay State University)
“Patrimony, Estates and the Kindred. Dividing the Goods in
Árpád-era Hungary”
According to the earliest legal sources for the kingdom of Hungary
(11th and early 12th century), inheritance rules focused upon the
status of the land in question with the prima- ry distinction being
that between land acquired through royal donation and that obtained
through purchase. In the sixteenth-century Tripartitum opus iuris
consuetudinarii by Stephen Werbcy, we see a much more developed
system but one still dominated by the status of the land. Land
could be classified as either ancestral land of the kindred, or
that obtained by royal donation. Land considered part of the
ancient kindred was subject to numerous re- strictions, all of
which were designed to maintain the integrity of the ancestral
lands while land held through royal donation could be disposed of
freely with the provision that land returned to the crown in the
event of the lack of a direct heir. In contrast, kindred lands
passed to collateral relatives, including cousins. In the charter
evidence of the thirteenth and fourteenth centuries, we see some of
these principles at work while others are notably absent.
Unsurprisingly, there appears to be a much more flexible approach
to the inheritance rules than the legal prescriptions would imply,
and families employed various strategies to maintain the integrity
of their holdings and to maintain the peace among family
members.
11:00 - 11:30 Yves Sassier (Paris) “Un conflit entre héritières
devant la justice royale au cœur du XIIIe siècle : la dislocation
du grand comté de Nevers-Auxerre-Tonnerre”
Session 7 : Islam [présidence : Jean-Claude Cheynet]
11:30 - 12:00 Frédéric Bauden (Liège) “Biens de mainmorte familiaux
ou comment éviter la division de la propriété à l’époque
mamelouke”
Les règles juridiques relatives à l’héritage en Islam sont fixées
très précisément en ver- tu des préceptes édictés dans le Coran.
Très tôt, la possibilité d’instituer une partie de l’hé- ritage en
fondation charitable (waqf) est apparue sur base de traditions
prophétiques. Fixée selon des normes bien définies, ce type de
fondation a connu une évolution qui a conduit à des dérives à
certaines époques. L’une d’entre elles concerne la fondation
charitable instituée au profit des héritiers du fondateur (waqf
ahl/dhurr ou waqf familial) ou du fondateur lui- même (waqf ‘al
l-nafs). À l’époque mamlouke, ces deux types de fondation connurent
un succès sans égal auprès de l’élite militaire. L’une des raisons,
sinon la raison première, qui se cache derrière cet engouement pour
cette forme d’héritage est qu’elle permettait d’éviter la
dispersion du patrimoine entre les nombreux descendants d’une
personne tout en ga- rantissant à ces derniers un revenu. En outre,
les règles de l’héritage pouvaient aussi être contournées de
manière subtile, ce qui n’était pas sans susciter des jalousies au
sein des hé- ritiers. Critiquée par certains juristes, cette forme
d’héritage a néanmoins servi les intérêts économiques et sociaux
d’une partie de l’élite pendant plusieurs siècles. Notre propos
sera d’analyser, pour l’époque considérée, les circonstances qui
ont conduit au développement ex- traordinaire de ces fondations,
les modalités d’accompagnement pour accomplir les volontés du
fondateur et les conflits qui pouvaient surgir parmi les
héritiers.
The legal rules of inheritance in Islam are set very precisely by
precepts laid down in the Koran. Very early on, the possibility of
establishing a part of the legacy as a charitable foundation (waqf)
emerged based on prophetic traditions. Determined according to
well-de- fined standards, this type of foundation underwent an
evolution, leading to abuses at certain periods of time. One type
of abuse concerns the charitable foundation established in favor of
the founder’s heirs (Waqf Ahli / dhurr or family waqf) or in favor
of the founder himself (waqf ‘ala l-nafs). During the Mamluk
period, these two types of foundation experienced unparalleled
success with the military elite. One of the reasons, if not the
main reason, be- hind this enthusiasm for this form of inheritance
is that it made it possible to avoid the dis- persion of wealth
among the many descendants of a person, while guaranteeing them a
in- come. Moreover, the rules of inheritance could be circumvented
in a subtle way, though not without arousing jealousy among heirs.
Criticized by some lawyers, this form of inheritance has
nevertheless served the economic and social interests of a part of
the elite for centuries. Our purpose is to analyse the
circumstances that led to the extraordinary development of these
foundations during the Mamlouk period, the ways of honoring the
founder’s wishes and the conflicts that might arise among the
heirs.
12:00 - 12:30 Lahcen Daaif (Paris) “L’égalité entre hommes et
femmes dans les actes de waqfs mamelouks. Un défi à la loi ?”
Sur environ 3000 documents légaux que renferme la base de données
CALD (Com- paring Arabic Legal documents) établie dans le cadre du
projet européen ILM (Islamic law materialized) plus de la moitié
sont d’époque mamelouke et les waqfiyyt en constituent une partie
non négligeable. Parmi les nombreuses clauses dont font état ces
waqfiyyt, l’égalité entre les hommes et les femmes est l’une des
plus courantes et frappantes à la fois. Dans ces waqfiyyt, le wqif,
le musulman fondateur du waqf –que celui-ci soit une fondation
pieuse (ayr) ou un bien de mainmorte familial (ahl)– insiste
souvent sur le partage égal des reve- nus du waqf entre les
bénéficiaires parmi ses héritiers comme parmi les pauvres et les
néces- siteux, sans discrimination des femmes. Rares sont en effet
les waqfiyyt qui observent la loi coranique de l’héritage selon
laquelle la femme a droit à la moitié de ce qui revient à
l’homme.
Tout en le confrontant aux règles du droit successoral, on abordera
ce thème en s’inter- rogeant sur la nature des raisons pour
lesquelles ces fondateurs du waqf ont opté pour l’égalité entre les
deux sexes. Y aurait-il une explication d’ordre purement juridique
qui aurait favorisé cette tendance, spécialement à l’époque
mamelouke ? Dans la mesure où les awqf (plur. waqf) ont connu un
essor fulgurant sous les Mamelouks, peut-on rattacher cette
insistance sur l’éga- lité à une politique juridico-religieuse qui
aurait été encouragée par les autorités de l’époque ?
About 3000 legal documents are contained in the database CALD
(Comparing Arabic Legal Documents) established thanks to the
European project ILM (materialized Islamic law), more than half of
these documents date to the Mamluk period and, among them, the
waqfiyyt constitute a significant part. Among the many clauses
included in such waqfiyyt, equality between men and women is one of
the most common and it is striking at the same time. In these
waqfiyyt, the Waqif, founder of the Muslim waqf- whether a pious
founda- tion (Hayri) or a family property in mortmain (Ahly) –
often insists on the equal sharing of income among the
beneficiaries of the waqf among his heirs as among the poor and
needy, without discriminating women. Few indeed are the waqfiyyt,
which observe the Islamic law of inheritance according to which a
woman is entitled to half of what is given to a man.
While confronting this fact with the rules of inheritance, we shall
address the question of why these waqf founders opted for equality
between the sexes. Is there a purely legal ex- planation which
would account for this trend, especially during the Mamluk period?
Insofar as the Awqaf (plural waqf) have skyrocketed under the
Mamluks, can we relate this insis- tence on juridico-religious
equality to a policy encouraged by the authorities of the
time?
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