Patria Potestas

Abstract

Abstract Marriage, the first linchpin of the Roman family, may seem, from a modern perspective, surprisingly poorly developed and supported in Roman law. By contrast, patria potestas (paternal power), the second linchpin, is forcefully constructed, so forcefully, in fact, that it is one of the most distinctive aspects of the Roman legal tradition. Common to almost all legal systems is a recognition that, during their youth, children require close control by, if possible, their parents, who through social and legal norms have extensive powers to discipline their children and control their property; nor, in premodern legal systems, is it at all unusual for these powers to be concentrated chiefly in the father as representative of a traditional patriarchy. But what is unusual about Roman law is that paternal dominance did not end when children attained maturity or adulthood. On the contrary, with limited exceptions, this dominance continued as long as the child had any living antecedent in the direct male line (father, paternal grandfather, and so on). The jurists recognize patria potestas as a distinctive cultural marker, a determinant of national identity. As Gaius observes: “This is a right peculiar to Roman citizens, since generally speaking no other people have such power over their children” (Inst. 1.55). In legal theory, at least, the right was not only lifelong but virtually unlimited; patres familias, as the wielders of patria potestas, could decide whether those in their power lived or died, whether and whom they could marry and for how long, whether they could treat any property as their own (even though the pater always remained the true owner), and so on.