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date: 02 December 2020

lex Iulia de Maritandis Ordinibusfree

  • Jacob Giltaij

Summary

The law of Augustus concerning the regulation of marriage (18 bce), a plebiscite often treated in conjunction with the consular law of Papius and Poppaeus (lex Papia Poppaea, 9 ce, together as lex Iulia et Papia), primarily obliges all Roman citizens to enter into marriage with the purpose of producing legitimate offspring. With this goal, the law probably contained set age limits at which point one was expected to have been married, an age likely reflective of the fertility age, and an extensive list of rewards and privileges for those producing (legitimate) offspring.

Sources

The literary sources of the 1st and 2nd centuries ce emphasize the reward structure the law contained. For example, Tacitus, in Tac. Ann. 2.51 suggests the number of children was crucial for the election of a praetor. The general overviews of the laws enacted by Augustus in Suetonius, Augustus 34 and Cassius Dio, Historia Romana 54.16 confirm primarily the rewards the law contained, with the wording suggesting an echo of republican censorial practice. The most extensive treatment of the reward structure, however, can be found in Aulus Gellius, Noctes Atticae 2.15, who provides a thorough discussion of the seventh chapter of the law, concerning the important role of the number of legitimate children with respect to the election of the consul.

Several pre-Justinian legal sources then concern the content of the law. Primary among them is an extensive treatment in the Tituli ex corpore Ulpiani. In text 14, an exception to the penalties under the law is granted to women for the obligation to (re)marry for a year after the death and six months after the divorce from their husbands. In 15 and 16 then, the regulations concerning the inheritance are treated, stating for instance, that husband and wife were not able to inherit from each other if they were married in contravention to the precepts of the law. The Vatican Fragments (Fragmenta Vaticana, or FV) provide a series of excerpts ostensibly containing a list of family members who are excepted from the sanctions of the law, most likely in the sense of them being allowed to testify in a trial concerning the inheritance of someone without legitimate offspring (FV 158; 216–219). The exact function of the catalogue is hard to pinpoint.1

The Digest contains a number of passages pertaining to the law and its later interpretation, mainly in books 23–24 and 38. The jurist Paul, apparently quoting the law directly, states it decried marriages between senators and their listed family members to anyone that had been manumitted (Ad legem Iuliam et Papiam 1, Dig. 23.2.44pr.). The inclusion of limits on marriage is to a degree confirmed by a 19 ce Senatus Consultum, and Tit. Ulp. 14 as mentioned previously.2 Apart from limits on marriage, as the literary sources suggest, the law contained an extensive reward structure, for instance with respect to the number of children, which could free manumitted persons from aspects of the tutela legitima of the patron, dependent on the number of surviving children (Gai. Inst. 1.194; Paul, Ad legem Iuliam et Papiam 2, Dig. 38.1.37pr). Concerning the capacity to inherit between husband and wife, the jurist Terentius Clemens clarifies what counts as a marriage in contravention with the law (Ad legem Iuliam et Papiam 8, Dig. 23.2.48,1). It seems that the law attracted considerable legal debates long after its enactment, prompting several complimentary Senatus Consulta as well as dedicated works by the jurists Terentius Clemens, Gaius, Marcellus, Mauricianus, Ulpian, and Paul.3 Reconstructions of the original law can be found in Rotondi and Crawford.4

Content

The obligation to marry for female Roman citizens is not mentioned explicitly in the legal sources but can be deduced from the legal time limits (vacationes) imposed on remarrying after a divorce or the death of the former spouse for those within a certain age group (Tit. Ulp. 14).5 For male Roman citizens, no such time limit is explicitly handed down, however it is generally assumed similar regulations were enacted for them also. To realize the obligation to marry, the law set several rewards, but did not nullify acts in contradiction with its precepts, making it a lex imperfecta or at least a lex minus quam perfecta.6 Regardless, the sanction under the law primarily consisted of being barred from certain privileges or advantages.7 As such, it removed various obstacles pertaining to the institution of matrimony and the choice of partner, including that between patron and freedwoman, but it also sanctioned various unwanted partnerships. For instance, the law discouraged senators and their direct family from marrying freedmen or -women. More generally for freeborn citizens, it decried marriages to various categories of the infame, actors specifically.8

Moreover, the law contained an extensive set of provisions regarding illegitimate and legitimate heirs, pertaining to Romans who left the former, had not married (caelibes), or did not have children at all (orbi).9 It even made the number of children a factor in the election of the consul and other high offices of state.10 Not only male freeborn and freed Roman citizens were affected by the number of children they had: wider privileges and freedoms in a variety of contexts were bestowed on both freeborn and manumitted women having a set number of children (Aulus Gellius 2.15.4–7).11 The lex Papia Poppaea appears to have expanded on this, for instance by only allowing couples who had had a set number of children—who had subsequently passed away—the ability to inherit by testament from each other. Generally, the sources are not clear on whether the number of children was included in the law or made dependent on the concrete situation. To distinguish the laws, whereas the lex Iulia de maritandis ordinibus was primarily aimed at encouraging marriage, most likely the lex Papia Poppaea rewarded bearing legitimate offspring above all.12

Although for the marriage of children under his power (liberi in potestate) the permission of the pater familias (consensus patris) was necessary, the lex Iulia made it possible to substitute the permission for an act of a magistrate, probably the urban praetor in Rome and (later) the governor in the provinces, provided there were no other legal objections present.13 Lastly, the law contained regulations pertaining to the betrothal (sponsa), though these might have been introduced only with the lex Papia Poppaea; and the protection of the dower (dos), in the context of which it is contested whether magistrates could also enact binding judgments to substitute or supplement the will of the pater familias.14 As such, the law as a part of a wider set of regulations enacted by Augustus in the course of his reign is presented in the literature as an instance of social engineering, aimed at reconstituting the Roman populus after the fall of the Republic.

Effects

Whether or not the law actually counts as an instance of social engineering, it seems it does fit a larger program initiated by Augustus and carried on by the subsequent Emperors to legally interfere in the sphere of the familia—which included slaves and freedmen. Likely, the program was effected by virtue of the powers of the censor, which at some point in the early Empire had come to be transferred to the princeps. In this context, the law created a model case (Normalfall) for how a man and woman should live together.15 Thus, it legalized hitherto normative relations, and severely limited the power of the pater familias in favour of that of the magistrate. Since the law was primarily aimed at the senatorial class, there may have been a political aim in play here, that is, preventing intermarriages between senatorial families. However, the law affected a much wider array of persons, and seeing the connections between the lex Iulia de maritandis ordinibus and the lex Papia Poppaea, as well as several other laws of Augustus such as the law of Augustus regarding adultery (lex Iulia de adulteriis, 18 ce) and various laws concerning freedmen and manumission, it seems to have mainly been aimed at stabilizing the Roman family and its social context with the purpose of producing offspring.16 Still, its actual effectiveness in Roman society is debatable.17

Further Reading

  • Astolfi, Riccardo. La lex Iulia et Papia (2nd ed.). Padua, Italy: CEDAM, 1986.
  • Jörs, Paul. Über das Verhältniss der Lex Iulia de maritandis ordinibus zur Lex Papia Poppaea. Bonn, Germany: Universitäts-Buchdruckerei Carl Georgi, 1882.
  • McGinn, Thomas A. J. Prostitution, Sexuality, and the Law in Ancient Rome. Oxford: Oxford University Press, 1998.
  • Mette-Dittmann, Angelika. “Die Ehegesetze des Augustus. Eine Untersuchung im Rahmen der Gesellschaftspolitik des princeps,” in Historia Einzelschriften, Vol. 67 (Stuttgart: Franz Steiner Verlag, 1991)
  • Nörr, Dieter. “Planung in der Antike: Über die Ehegesetze des Augustus.” In Freiheit und Sachzwang. Festschrift zu Ehren von H. Schelsky, ed. Horst Baier, 309–334. Opladen: Westdeutscher Verlag, 1977.
  • Nörr, Dieter. Historiae Iuris Antiqui Vol. 2, ed. Tiziana J. Chiusi, Wolfgang Kaiser, and Hans D. Spengler, 1093–1118. Goldbach: Keip, 2003.
  • Raditsa, Leo F. “Augustusʼ Legislation concerning Marriage, Procreation, Love Affairs and Adultery.” In Aufstieg und Niedergang der römischen Welt, Vol 2.13, ed. Hildegard Temporini, 278–339. Berlin: De Gruyter, 1980.
  • Schulz, Fritz. Classical Roman Law. Oxford: Oxford University Press, 1951.
  • Treggiari, Susan. Roman Marriage: Iusti Coniuges from the Time of Cicero to the Time of Ulpian. Oxford: Clarendon Press, 1991.
  • Wallace-Hadrill, Andrew. “Family and Inheritance in the Augustan Marriage Laws.” The Cambridge Classical Journal 27 (1981): 58–80.

Notes