The Roman Law of Family Relationships: Paterfamilias [No. 86]
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The Roman Law of Family Relationships: Paterfamilias [No. 86]


The distinctive Roman institution, which did
not survive, which applied only to private transactions, not the political life, was
the arrangement in which the powers vested in the “pater familias”. And “pater” is Latin for father, “familias”
is Latin for family, and it was never a matrilineal system, it was a patrilineal system. The basic rule of this particular system is
that all rights and duties for the family were vested in the person who sat at the head
of it. This person, much like a mini emperor, would
in fact distribute the rights and duties within the family, subject to his own discretion. There may well have been an abuse or neglect
contingency built into this system, but that’s not what’s typically stressed. So what goes on is, if you’re an old and doddering
father and you have two sons and one daughter, they’re all underneath your power, which means
that none of them can enter into contracts with third parties by themselves, but would
have to have your blessing in one form or another, which could create all sorts of awkwardness
and tended to develop in general agency rules so that they could transact in the market
with the laws, if sometimes implicit, blessing of the father. This would go to the grandchildren and all
the way down, so you had this one person. Now, when that one person dies, it turns out,
let’s say he had two sons, then each of them would become head of his own family, subject
to everybody else’s subordination. Sometimes when the two were in the care of
their father, they entered into a joint venture. The Romans had this institution of partnerships,
which had this strange Latin term “ercto non cito” which meant in effect that you would
treat them as though they were partners so they could continue their relationship without
the guy at the top. Since, when the father was there, each of
them had to take into account the abilities of the others and the needs of the others
on an equal level of its own; these relationships became known as bonafide relationships. Now what this meant was that when you’re making
a decision on behalf of the group, you have to weight the utility and the inconvenience
to the other party equal to that of your particular self. If everybody follows that principle, which
they’re likely to do since partnerships are chosen on the nature of trust, then you’re
gonna get a higher level of performance than you would if each party feels free to defect
and to benefit himself while harming the others. When we talk about partnership, we can see
the way in which these rules are put into effect.

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