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Capitale

(86 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The Romans used the word capitale whenever the  death penalty (also poena capitis) was concerned: for the crime itself, the legal process, as well as in passing and executing a sentence, but also for the loss of personal freedom or citizenship (  deminutio capitis ) and particularly with reference to exile (  exilium ), when -- from the late Republican period -- this indeed replaced the death penalty for Roman citizens. Schiemann, Gottfried (Tübingen) Bibliography E. Cantarella, I supplizi capitali in Grecia e a Roma, 1991.

Parens

(392 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In the history of Roman politics and the ruler cult, parens (literally: either physical parent, in reality, the father) is, in the combination parens patriae (father of the fatherland), a linguistic forerunner of the exalted name for the emperor pater patriae . The best-known example of its use is in 63 BC when the title parens patriae was bestowed on Cicero by Q. Lutatius [4] Catulus in the Senate after the suppression of the Catilinarian conspiracy (Cic. Sest. 121; Cic. Pis. 6). The title meant that Cicero had saved the Republic. Thi…

Torture

(809 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A. Historical foundations In a legal history sense, torture in Antiquity can be understood primarily as a means for eliciting evidence. Furthermore, torture occurs as a(n additional) punishment. The origins of the legally recognized use of torture is obscure. In the Babylonian law Code of Hammurabi (Cuneiform, legal texts in), for instance, there is no mention of torture at all [1]. By contrast, it was widespread in Greece. The Greek expression for the use of torture, βασανίζειν ( basanízein) is probably a loanword from the Orient, however, so that torture …

Sectio bonorum

(91 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] ('liquidation of assets') is the model for the Roman collection of debts ( missio in possessionem ) executed against debtors in Roman law. If someone, esp. a tax collector ( publicani ), owed money to the state, all his assets were liquidated. The buyer had to assume the debt. The purchase price went to the treasury ( aerarium ). Guarantors ( praedes) whom the state debtor often had to procure were subject to SB as well. Debt Schiemann, Gottfried (Tübingen) Bibliography M. Kaser, K. Hackl, Das römische Zivilprozeßrecht 21996, 389 f.

Banishment

(57 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Graeco-Roman Antiquity banishment largely replaced the death penalty for members of the upper class, but also existed as an independent  punishment, as in the Attic ostrakismós . For details for Greece, particularly Athens, see phygḗ , aeiphygía , apeniautismós , for Rome see exilium , deportatio , relegatio . Schiemann, Gottfried (Tübingen)

Emancipatio

(577 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Under Roman law the   pater familias generally held paternal authority over his children for as long as he lived. Releasing sons from the control of the pater was possible only by means of a formal and complicated legal process: the emancipatio. It was linked to formal alienation by   mancipatio , by which not only a dominus could sell his slaves but also a father his sons. By means of this ‘sale’ a father gave his sons into servitude with another pater. Even in the period of the Twelve Tablets (5th cent. BC) no suitable business practice other than the ‘sale’ …

Accusatio

(201 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] according to the Digest title 48,2 is the charge in Roman criminal proceedings. The bearer of the accusatio is in that case a private person. This person first laid a charge (  delatio nominis ). In the later imperial period in an extra ordinem judicial criminal prosecution it was often the case that this was the sum total of the private share in the course of procedure. In the republican procedure (  quaestio ), on the other hand, the delator was always and, even later still regularly, a party after admission of the accusatio by the court magistrate ( receptio nominis) -- simil…

Latini Iuniani

(411 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Roman freedmen, whose manumission ( Manumissio ) was deficient. For this reason the freedman did not receive citizenship and in general had an inferior legal status compared to other freedmen. The term Latini Iuniani ( LI) is derived from a lex Iunia ( Norbana?), probably of AD 19. It legally equated certain groups of freedmen with Latini coloniarii (holders of citizenship in a Latin colony). Therefore, they had no political rights (especially no voting rights) but were able to take part in legal transactions with Roman citizens because they had the commercium

Sponsalia

(85 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] A couple's engagement in Roman law. The term appears to have derived from the fact that marriage in earlier times had been promised mutually through an official stipulatio (or through sponsio ) of the couple's fathers. In the late Republic and in the Principate, the sponsalia could be revoked freely and it was no longer possible to file a suit for marriage. Indirect commitments (e.g. contract penalties, Dig. 45,1,134 pr.) were abolished as well. Schiemann, Gottfried (Tübingen) Bibliography Honsell/Mayer-Maly/Selb, 392 f.  Treggiari, 145-160.

Dictio dotis

(219 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Under Roman law a unilateral promise to provide a dowry (  Dos ). Proculus (Dig. 50,16,125) gives the form of words used to make the promise: dotis filiae meae tibi erunt aurei centum (‘as dowry for my daughter you will have 100 gold pieces’). The words were said by the father or another male ancestor of the bride, or by herself, or by someone in her debt designated by her (such as a previous husband forced to return the dowry he himself had once received, following an actio rei uxoriae, a divorce). Despite its one-sided declaration the dictio dotis was considered a settlement…

Partus suppositus

(300 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The PS, the substituted child, played a considerable part in Roman legislation and legal science. This could be easily explained in view of the consequences of legitimate birth in terms of status, civil law and succession. Until the early Imperial period (1st cent. AD) it seems that the problem of dubious birth was mostly resolved within the family: The father, as part of his paternal power ( patria potestas ), had the right to expose newborn children (Exposure of children). Whether an explicit acceptance by the father of the child was required by picking up the child ( toller…

Thesaurus

(256 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] In Roman law, thesaurus refers to a treasure found by someone (Just. Epit.. 2,1,39). The Late Classical jurist Iulius [IV 16] Paulus (early 3rd cent. AD) uses the term thensaurus, which he defined as "money that was put away so far back in the past that no memory of it exists and it therefore no longer has an owner" ( vetus quaedam depositio pecuniae, cuius non existat memoria, ut iam dominium non habeat, Dig. 41,1,31,1). However, not only money but any type of valuable object was regarded as a thesaurus. Why a Greek loan-word was used for this can no longer be deter…

Persona

(227 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] [1] Masks see Masks Schiemann, Gottfried (Tübingen) [German version] [2] Legal In modern parlance, persona is indeed a loan word received from Latin; however, persona in Latin certainly did not have the central meaning that it now conveys in modern legal culture based on rational law (cf. Person). In Ulp. Dig. 50,17,22 pr., Ulpian does indeed mention a persona servilis, that is, the personality (even) of a slave. However, this is in connection with the conclusion that slaves are not entitled to any legal claims. Rather, the slave was -- a…

Divorce

(474 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The dissolution of marriage through divorce appears to have been possible everywhere in antiquity from Mesopotamia to Rome, of course not always in the same way for men and women. Thus in Egypt in the 1st millennium BC it was possible for women as well as men to make a declaration of divorce; in ancient Jewish law, as probably also in Mesopotamia, on the other hand, the repudiation was only declared by the husband. In any case, Jewish law also linked the dissolution of the marriag…

Legislation

(262 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] in antiquity is both the subject of pragmatic politics ( Law, codification) and theoretical reflection (political science and legal philosophy). The latter was first discussed by the Greeks (as nomothesía) and immediately reached an intellectual high point, especially in Plato's [1] late work on laws ( Nómoi). Plato's opinion of lawgiving, as is also related by Cicero in his theory of lawgiving ( De legibus), had a sustained effect on Roman Imperial lawgiving and, therefore, on European legal science after the reception of Roman law beginning …

Supplicium

(250 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] ('Punishment') is used in Roman law similarly to poena , but confined to 'public' punishment (Penal Law) and more specifically the death penalty. One can only speculate on how supplicium (originally probably a plea for forgiveness) came to acquire the meaning of a punishment. The Twelve Tables (5th cent. BC) do recognize the death penalty in some cases, but primarily as a private punishment; it is not called supplicium in reports on the law. A supplicium more maiorum ('punishment according to the tradition of the forefathers') is mentioned several times i…

Iuridicus

(352 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The term iuridicus (‘person employed in law’) appears in sources of the Roman Imperial period with very different meanings. 1. From Hadrian, perhaps even Vespasian, iuridici provinciae, more frequently called legati iuridici, appear in imperial provinces. They are representatives of the provincial governor's jurisdiction, sometimes for the whole province, sometimes only for districts. It is disputed whether the juridical powers of the iuridicus were merely derived from the governor (e.g. [1. 1149]) or were genuine imperial powers (as in [2]). 2. The iuridicus …

Libel

(97 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] Libel was prosecuted as serious injury to the character in both Greek (Attic) and Roman law. In Athens, libel may have come under kakēgoría (cf. also loidoría ) and have led to a fine in a private suit. In Roman law, libel was likewise a civil offence as a form of iniuria (a wrongful act). Possibly related to libel was the carmen famosum (‘defamatory poem’) of the Twelve Tables ( tabulae duodecim ). An aggravated form of libel was the Roman calumnia (false accusation), which could lead to harsh punishments. Schiemann, Gottfried (Tübingen)

War, law of

(436 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] The origin of the ancient law of war, like that of international law, cannot be attributed to a particular event or treaty. Already before the Greek and Roman periods there were concepts and customs that may retrospectively be understood as part of a law of war. Thus, in ancient Mesopotamia and Homeric Greece, taking spoils was considered legitimate, and a particularly important part of the spoils was the enslavement of prisoners of war and subjugated peoples ( War booty). The OT …

Divortium

(442 words)

Author(s): Schiemann, Gottfried (Tübingen)
[German version] (from divertere, to turn away) is divorce in Roman law. Its basis is clearly set out in a rescript of Alexander Severus in AD 223 (Cod. Iust. 8,38,2): libera matrimonia esse antiquitus placuit (it was recognized of old that marriage is free). Whether this was true of marriages in the early times that were celebrated with special rites is doubtful. But even here extant sources mention that provision was made for a form of divorce (  diffarreatio ). The ‘freedom’ of marriage meant in particular that no grounds were required for its dissolu…
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