JUSTINIAN'S LAW AS IT APPLIED TO WOMEN AND FAMILIES

 

Following the death of Emperor Theodosius in 395 his two sons were declared joint emperors.  One was nominally responsible for the east and one for the west.  While the two men were theoretically supposed to be joint rulers over a single empire, in reality the two halves were never again to be united.  When Justinian came to power in 527 CE as ruler of the eastern half, one of his aims was to update and codify all of the laws.  As time passes society changes and laws that served one generation well might not work for the next.  New laws were passed and new interpretations were made, but this had all been done on an ad hoc basis and by the time Justinian came to power the law was in a bit of a mess.

The new Emperor was determined to fix this by gathering all of the laws into one place.  The intent was not to create anything new, but to gather together all of the laws that still applied, delete the ones that did not and eliminate contradictions.  The result was a document two or three times the length of the Bible.

ELEMENTS IN JUSTINIAN LAW

All of these elements had the force of law.

CODE:  An updating of the ninety year old Code of Theodosius.  Justinian’s Code was intended to be temporary and was soon superseded by the following: 

INSTITUTES OF JUSTINIAN: An updating of the second century Institutes of Gaius

DIGEST: The views of some 39 jurists living in the years between Augustus and Justinian.  Some were rewritten to accord with modern law and contradictions and opinions that no longer applied were eliminated.  The end result supposedly represented the law as it existed under Justinian

CODEX:  All of the edicts issued by previous Emperors that were still in force.

NOVELS:  New laws.  The intent was to keep this up in perpetuity, but the dream did not last much longer than Justinian.

 

This Web Site makes no attempt to identify which rules come from which element of Justinian’s Law, for that is well beyond the needs of those who just want to know the impact of law on the lives of women in Ancient Byzantium.  The above is mentioned as an aid to those who may have heard these names elsewhere and wondered why Justinian’s Law has so many different names.  Each represents a different approach but all had the force of law.  Justinian law is clearly based on Roman law.  I have tried to identify important areas of change but the reader is cautioned not to assume any single detail from the eastern empire was equally applicable in the west.

   

POTESTAS

Unique in the ancient world, a free Roman citizen retained full control over any children born to his wife, any children born to a married son, and any children born to a married son of one of his sons.  This control remained in effect for life unless ended by one of the following:

  1. A daughter married "with manus" passed into the power of her husband.  Such a marriage was quite rare, however, and daughters usually remained in the power of their birth family.  (Note: this meant that any property the wife owned outside of her dowry and prenuptial donation remained in her family.  Her husband administered the dowry and prenuptial donation and was certainly the "head of the house" on a day to day basis.

  2. Emancipation was a legal act by which a man could free a slave, child or grandchild.

Note: Illegitimate children, including those born of a concubine, belonged to the mother and had no right to a share of their father's estate. 

  

BETROTHAL

  1.  Agreement in principle is sufficient.  The parties need not all be present or involved as “the conditions in the marriage contract are nearly always settled by intermediaries.”

  2.  Betrothal can take place as early as seven years of age.

  3. The father is presumed to consent unless he objects.

  4. The girl is presumed to consent unless she objects.

  5. She can refuse her assent only if her father has chosen someone whose bad behavior or character makes him unfit.  A son appears to have the complete right of refusal.

  6. A tutor cannot cancel a betrothal without her consent although a father could.

NOTE:  Betrothal was a sign of intent rather than a legal commitment to marriage.  Any of the parties to it were free to withdraw their consent without penalty at any time prior to the actual marriage.   The situation was complicated if gifts had been exchanged, for the party backing out of the marriage was often expected to return them.  If, as was usual, the betrothal gifts were small tokens, this presented no problem.  On occasion, however, considerable wealth had changed hands at betrothal and it was not always easy to decide how much was a fair penalty for canceling an engagement.

 

WHO MAY MARRY WHOM

  1. People in an ascendant-descendant relationship---father-daughter; aunt-nephew, etc. may not marry.  Brothers and sisters may not marry, but first cousins could. 

  2. A Senator cannot marry a freedwoman except with imperial permission.  The daughter, grand-daughter, great-granddaughter of a Senator cannot marry a freedman or an actor.  Justinian relaxed this rule briefly but then changed his mind and reinstated it.

  3. A patron cannot marry a freedwoman against her will, unless he manumitted her for the purpose of marriage.

  4. A Christian cannot marry a Jew.

  5. A widow may not remarry less than a year after her husband’s death.  Severe financial penalties followed violation of this rule.

 

MARRIAGE

  1. Consent is a requirement

  2. A girl who was less than 12 years old when she married is not really a lawful wife until she reaches that age although she can continue to live with her “husband” until then.  

  3. While marriage can take place in the absence of the groom, the bride must be led in person to her husband’s house.

  4. A lack of prenuptial gift, dowry, procession or wedding ceremony shall not invalidate an otherwise legal marriage.  (Note that not all contradictions had been removed, as this clause conflicts with the one above.)

  5. If a wife absents herself for three days every year she will remain in the power of her father (or other male kinsman) rather than fall under the authority of her husband.   Normally a father or brother could be counted on to be more benevolent and were certainly more remote.  This marriage “without manus” was the norm throughout the time of the Empire.

  6. Prostitutes, procuresses, actresses, women working in a tavern and women convicted of adultery were permanently barred from marriage to a freeborn man, but they could become concubines. 

NOTE: Girls continued to marry in their mid teens men who were in their mid twenties.  It is unlikely that very many of such young women had any real say in the choice of their first husband. 

 

 

PUNISHMENT BY THE FAMILY FOR ADULTERY

  1. A man who catches his daughter in the act of adultery may kill his daughter and her lover provided all of the following conditions are met:

    • the daughter is in his potestas (or power)

    • the adultery occurred in the father's own home or in the home of the daughter's husband.

    • the killing is immediate

    NOTE: that a man in the power of someone else is not free to kill an adulterous daughter or her lover.  

  2. A husband may kill his wife and her lover if he catches them in the middle of the act of adultery inside his own home and does so immediately.  If he kills only the lover, he must divorce his wife.

NOTE: In both of the above the man must have caught the adulterers in his own primary residence (not in a summer cottage) and the killing must be immediate.  There is very little documentation for this kind of killing, which may or may not mean it was a relatively rare event.  In any case, the law as written seems designed not to encourage such things but to place serious limits on who is able to claim they killed in a moment of passion. 

 

DIVORCE

Throughout the time of the Empire divorce had been easy to get.  Either side was free to end the marriage for any or no reason at all, and "fault" entered the picture only in determining what happened to the dowry and prenuptial gift.  Constantine tried imposing financial penalties as did other emperors after him but these experiments were all short lived.  From the time of Constantine on divorce laws are subject to considerable variation depending on time and place.  The Justinian decrees were the most restrictive of all but these too were repealed within a few years and are included here as an historical curiosity.  It is tempting to see in Christianity the impetus for anti-divorce laws but there are problems with this interpretation and historians are divided.  

 

 

THE ONLY REASONS WHY A MAN COULD DIVORCE HIS WIFE

  1. She learned of a plot against the government but did not tell him about it (this would be treason)

  2. She has plotted against him.

  3. Adultery.  If there are no children from the marriage he will keep the pre-nuptial gift, the dowry and 1/3 of any other property she possessed.   He gets everything if there are children but he must preserve it all for them.

  4. She has bathed with strangers or she attends banquets, circuses, theatres, etc against his wishes

  5. Without his knowledge or permission she remains away from his home unless visiting her parents.

 

THE ONLY REASONS WHY A WIFE COULD DIVORCE HER HUSBAND

  1. He was implicated in a plot against the government or he knew of one and did nothing about it.  (Treason)

  2. He has attempted to kill her or did not warn her of an attempt by others.

  3. He seeks to deliver her to another man for the purpose of committing adultery.

  4. He accuses her of adultery but fails to prove his case.

  5. He entertained another woman in his wife’s home or he is frequently with another woman and refuses to stop after having been warned by his wife’s kinsman or “other person worthy of confidence.”

  6. The wife of a man convicted of adultery is entitled to possession of her dowry and the prenuptial donation.  If they have children she will get the use of the donation but must preserve the ownership for her children.  Any other property the husband possessed went to his children, or to the government if there were none.

 

DIVORCE BY COMMON CONSENT

  1. Divorce by common consent was illegal unless the parties were “impelled by the desire of living in chastity”.  Severe financial penalties would follow the breaking of such a vow.

  2. A woman may not repudiate her husband for any reason other than those listed above.  If she persists in doing so she shall be confined in a monastery.  Her dowry and prenuptialdonation shall go to her children if she had any or to her husband.  2/3 of her remaining property goes to her children and 1/3 to the monastery.  If there were no children 2/3 goes to the monastery and 1/3 to her parents.

  3. If a man should beat his wife with a whip or rod without legitimate cause the marriage will not be dissolved but she would get a sum of money from his other property equal to the prenuptial donation.  

 

CONCUBINES

Concubinage was a substitute used when marriage was either illegal or undesirable from the point of view of inheritance.  A man could not have a concubine and a wife at the same time.

Adultresses, prostitutes, procuresses and actresses were permanently barred from marriage, but they could become concubines.  The status freed the participants from any trouble with the law against improper sexual relations, but it otherwise conferred no legal benefit to the woman.  The children of such a relationship would be illegitimate and unable to inherit from their father.  Since the relationship had no legal standing, there was no protection for the discarded woman and concubines could never inherit from their partner’s estate, although he could give her anything he wanted while alive.  (Interesting, the law was the reverse for wives: their husbands could bequeath them property to them in death, but could make no gift to them in life.)

Other than senators and their descendents, a man could free his slave and take her as a concubine.  A widower might take a concubine to avoid creating a new family that would dilute his estate.  A young man might take a concubine until he felt old enough to marry a high class woman.  

It was a very serious crime for a woman to have a sexual relationship with a slave, even if he was her own.  While it was technically legal for her to manumit (i.e., free) him and then marry him, doing so would have been regarded as socially inappropriate.

It was not always easy to tell who was a wife and who was a concubine.  A dowry or a marriage contract was proof positive but these were not necessary in law.  In the absence of a clear statement to the contrary a woman living with a man was assumed to be a wife if there was no great difference in social rank.  The distinction was an important one as concubines had no protection in law and could be discarded freely. 

Illegitimate children had no automatic right to inherit from their fathers.  Laws regarding bequests varied from time to time, usually limiting them to less than ¼ or even 1/12 of the father’s estate.

   

ECONOMICS OF MARRIAGE

  1. While a dowry and a marriage contract were not necessary to make a marriage legal, both were very common.  Actually, there were several gifts that could pass between the bride and groom and their respective families at the time of the marriage and the laws regarding the disposition of these in the event of death or divorce varied somewhat by time and place; the dowry and the prenuptial donation were the most important of these.  The dowry was a gift from the girl's family to the bride and served the following purposes:

    • part of the capital required to start a new household

    • a fund from which she could support herself if the marriage ended due to divorce or the husband's death

    • a part of a daughter's inheritance

    • a bequest for her children

    The prenuptial donation was in theory a gift from the groom or his family to the bride, but it along with the dowry was administered by the husband as part of the capital of the new household.  Since the prenuptial donation went in a single instant from the groom to the bride and back to the groom it was often little more than an IOU.  Its ultimate disposition depended on what happened to the marriage: if the husband died or the marriage broke up through no fault of the wife the gift went to support her.  The husband administered the dowry in more or less complete freedom.  Out of it, of course, he had to support his wife in a reasonable style and he had to be able to return it to her in the event of a divorce or his death. 

    The law had nothing to say on the size of the dowry or donation, but by Justinian's day it was likely that both were the same size.

A driving theme in Roman law was the need to keep wealth in the family that created it.  In the old style marriage "with manus" a wife became a part of her husband's family.  Marriage "without manus" gave the wife more freedom but created a new problem in that it would be possible for wealth to go to another family to the detriment of the heirs of the first family.  

Although still in the potestas of her father, a wealthy wife usually had a peculium, property that theoretically belonged to her father but was for all practical purposes hers to use as she wished.  The law stated that husbands and wives could not transfer wealth between them.  Token gifts on birthdays and other such special occasions, seem to have been acceptable but major gifts were not.  Married people living together in the same house regularly used one another's things---even the house belonged to only one of them---but it was important in the event of death or divorce to be able separate out what belonged to the wife from what belonged to the husband.  The Romans were well aware of the problems such a division created and there was some minor tinkering with the rules but the fundamental principle banning the exchange of wealth between a husband and a wife remained constant up to and including Justinian's reign.  Of course, if a couple had children the holdings of the two families are ultimately going to be joined.

From the Third Century on children could inherit from their mothers, but if the children were "in potestas" the bequest actually went to their father who could legally do anything he wished with it.  Many Romans included in their will a clause requiring emancipation before a bequest took effect.  The law was amended under Constantine to require the father to preserve the bequest for the children although he retained the right to use it for as long as he lived.

In 542 Justinian allowed a clause to be inserted in a will could go directly to a named person even though that person was in potestas.  The father could no longer even claim the use of a bequest.

 

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