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Sommers.inddBRÉVIAIRE D’ALARIC
Session 1 : Grèce ancienne [présidence : Sabine R. Huebner]
10:00 - 10:30 Heinz Barta (Innsbruck) “Genese des griechischen Erbrechts und des Testaments”
‘The development of Greek inheritance and wills’
In Greece, archaic religions and traditions of ancestor worship were still as important to the house/oikos and family (and therefore to law) as the succession to an estate. First of all I will examine the prior conditions that led to the development of inheritance law and give an account of this development thereby differentiating between intestate inheritances and testamentary inheritances. Inheritance law is one of the oldest areas of the law, after family law and property law. The political community took part in deciding the position of individual family members in a family and a line of descent. Solon strengthened and expanded the legal status of individual citizens without impairing family bonds. A private- ly-developed legal body was an essential condition for the political development towards democracy. Originally religion, customs, morals and law were intrinsically interconnected; a normative amalgam existed, referred to as Nomological Knowledge by M. Weber. The separation of these elements happened gradually over a long period of time. – Solon set the ball rolling by allowing adoptive sons to be chosen over biological children (by the hosts/ kyrios). The question of Solon’s, ‘Law concerning wills’ is a disputed one, I follow the opin- ions of E. F. Bruck and R.Maschke whereby Solon created neither the Adoption Testament, nor the Legacy Testament, but did encourage their development. Jan Assmann has labeled it as: ‘death as a generator of culture’. – Inheritance law is closely connected to death and, together with Family Law, generates the norms by which a society lives. – Adoption came about in order to ensure the continuation of family and Oikos (Family Law) and from that, (firstly publicly) the Adoptive Will was developed (Inheritance law). – In addition to the Adoptive Will, the Will of Bequest was created (from endowment upon death) and with re- gards to this the Execution of the Will evolved. Chronologically, the two forms of will, from which the modern will developed, emerged between Solon’s legislation (594/3 v.: terminus post quem) and the last decade of the fifth Century (terminus ante quem). In my summary I examine ‘Parental Separation’, ‘Lawful Inheritance’ (where the bloodline is known) and the ‘Development of the Will’ (as a one sided testamentary instruction).
10:30 - 11:00 Martin Steinrueck (Fribourg) “ ‘Le dernier souper du Cyclope’ : l’iambe archaïque grec comme expression d’un groupe de jeunes hommes sans héritage”
En continuation d’un livre, cette intervention tente d’expliquer les problèmes d’inter- prétation de Théognis 731-752, 1123ss., Odyssée 2.17-23 ainsi que de plusieurs textes de la tradition iambique par une hypothèse selon laquelle les « jeunes hommes », néoi andres, célibataires, les deuxième-nés, les fils illégitimes sans héritage ne créaient pas seulement leur propre discours (l’iambe), mais aussi, comme Platon le dit, une force politique parfois dangereuse pour la cité.
11:30 - 12:00 Beate Wagner-Hasel (Hannover) “Agamemnons Töchter. Erbe und Macht in Homerischen Epos”
Im 9. Gesang der Ilias macht Agamemnon dem zornigen Achill ein Versöhnungsange- bot. Er bietet ihm die Heirat mit einer seiner Töchter an und die Verfügung über sieben Städte. Es wird in der Forschung kontrovers diskutiert, ob es sich bei dem Angebot um eine überdimensionierte Mitgift handelt oder ob beides, Heirat und dieVergabe von sieben Städ- ten, gar nicht zusammen gehören. Die Deutung hängt eng mit der Frage nach dem Charak- ter des Homerischen Erb- und Ehesystem zusammen. Der Vortrag beschäftigt sich speziell mit der Frage, wie Rangpositionen in der Welt des frühgriechen Epos vererbt werden und welche Rolle Töchter dabei spielen.
12:00 - 12:30 Brenda Griffith-Williams (University College London) “Matrilineal Kinship in Athenian Inheritance Disputes : Two Case Studies”
Succession rules tend to reflect the normal family structures in a particular society, but their rigid application is sometimes perceived as unfair, especially when more complex patterns of kinship are created by remarriage after death or divorce.
The Athenian order of collateral succession gave precedence to those related to the deceased on his father’s side. Even a homometric half-brother ranked lower than a patrilineal cousin, reflecting the reality that homometric half-siblings belonged to different oikoi. When a widow or divorcee remarried, the newly constituted household might include her new husband’s children by different wives, but any children from her previous marriage would normally remain in their paternal oikos, under the tutelage of a guardian if their father had died while they were minors.
We know of two Athenians whose unusually close ties of affection with their stepfa- thers led to conflict between their (patrilineal) next of kin and a matrilineal kinsman whose blood relationship to the deceased was closer. In Isaios 9, Astyphilos grew up in the same household as his homometric half-brother because his mother’s second husband was also
his guardian. His estate was contested by the half-brother against a patrilineal first cousin. In Isaios 7, Apollodoros was brought up after his father’s death by a guardian who tried to defraud him of his inheritance, so his stepfather took him into his own family and helped him in successful legal action against the guardian. When Apollodoros’s only son died unex- pectedly, he turned to his homometric half-sister to give him an adopted son. The adoption was challenged after his death by a patrilineal cousin.
We cannot tell how typical these cases were, but the forensic strategies adopted by the two speakers provide some insight into the tensions created by the claims of matrikin in a predominantly patrilineal inheritance system.
Session 2 : Judaïsme [présidence : Carlos Sanchez Moreno Ellart]
14:30 - 15:00 Giles Rowling (Macquarie University, Sydney) “Babatha’s Archive : Inheritance disputes in Second Century Roman Arabia”
At some time after the establishment in 106 CE of the former Kingdom of Nabataea as the Roman province of Arabia, Babatha and Yehudah, Jewish residents in the Province, mar- ried under a Ketubbah or marriage agreement. Babatha had an infant son by her first husband and Yehudah a daughter Shelamzion by his first and concurrent wife Miriam. While married to him, Babatha lent money to Yehudah.
Babatha brought proceedings before the provincial Governor for the payment of a greater sum for maintenance of her son and apparently intended that he should proceed against them after the termination of the guardianship.
After his death Babatha seized date groves formerly the property of Yehudah to se- cure her rights under her Ketubbah and her unpaid loan to him and Miriam had also seized property of Yehudah. Babatha and Miriam brought proceedings against each other before the Governor complaining about their respective seizures, in which Miriam asserted that Babatha had no rights against the property of Yehudah.
After her marriage, Yehudah had given Shelamzion a courtyard, by which he appears to have intended to make provision for her in case he should have a son who would, under Mishnaic law, be his heir to her exclusion.
The guardians of infant orphan nephews of Yehudah brought proceedings before the Governor against Babatha to recover date groves registered in her name by Yehudah assert- ing that they were the property of the nephews. I argue that since Shelamzion was the only child of Yehudah she was his heir, and not the nephews, and that their claim was for a share in the property of the grandfather of themselves and of Shelamzion, and that registration of the groves in her name had given Babatha no rights in them.
15:00 - 15:30 Nicholas A. E. Kalospyros (Athens) “Towards the Allegory of Idealized Oikos : The Nuclear and Extended Family Versions, Their Succession and Inheritance Issues and Their Cognates in Philo Judaeus”
Beyong the notion of allegory and allegoresis as hermeneutic techniques we could trace interesting elements concerning nuclear and extended family structure and relationships (esp. marriage, parents and children, extended kin, gender roles) in the numerable treatises of the Jewish-Hellenistic philosopher and writer Philo of Alexandria, so as to verify the thematic view of family-oikos in the Graeco-Roman world, under the keen spectrum of a prolific author and post-Platonic allegorist. The perception of family-beyond-household bounds, along with the study of relevant inheritance and succession conflicts and family cognates in the Philonian world, seems like an epitome of the Biblical creation, whilst at the same time enables us to form linguistic and stylistic devices of recognizing his theory of family membership and in Hellenistic antiquity. My paper aspires to set off the archaiognostic reading of an allegorical hermeneutic tradition including the formation of idealized oikos and its succession patterns, upon the philological documentation which is necessary for the establishing of such a study direction. The allegorical reduction of oîkos enables the bridging of the gap between the nat- ural creation and the realm of universal nature amidst the unique nature (physis) of humanity. Oîkos, then, is metaphorically elevated above any other typical thesmos physeos, just like each one of the ten commandments is called. Philologically speaking and in Philo’s terms, we have reached the literary scope of transcendental expression in Graeco-Judaean literature.
Session 3 : Rome [présidence : Mireille Corbier]
16:30 - 17:00 Amber Gartrell (Oxford) “Unequal Brothers : An Exploration of the Inheritance and Succession Strategies of Imperial Heirs under Augustus”
The development of a succession policy was crucial for Augustus in order to des- ignate an heir to his extraordinary collection of clients, powers and honours. However an inherent issue of any such policy was that there was no constitutional basis for either Au- gustus’ role or for a designated successor to it. This unusual situation therefore raises ques- tions of to what extent traditional inheritance policies and familial legislation should be considered applicable to the imperial succession.
This paper shall investigate an inheritance strategy in which young men of the imperi- al household were paired as heirs. Such pairings include Tiberius and Drusus the Elder, Gaius and Lucius Caesar, and Germanicus and Drusus the Younger. Through an analysis of the com- parative prominence of these heirs, I shall suggest that such pairings were often unequal. This paper shall examine why one heir might be favoured above another, considering the difference between biological and adoptive relationships and the possible benefit of primogeniture.
This paper shall analyse the relationships between the heirs, the Emperor and other members of the imperial family. I shall explore the conflicts which arose and the strategies which developed to cope with them during the first imperial succession. I shall focus upon a particular strategy designed to compensate for the difficulties of unequal pairings: the com- parison of the heirs with the Dioscuri, brother gods famed for their fraternal piety. Through an exploration of these paired heirs, the paper shall shed light upon the relationships, con- flicts and strategies of the imperial family during the development of the first imperial succession policy.
17:00 - 17:30 Coen van Galen (Nijmegen) “Keeping the Family Spirit alive : Roman Women and Inheritance Conflict”
This paper will examine inheritance conflicts involving Roman female citizens in the late republic and the way in which Roman legislators tried to solve these conflicts. Problems occurred as a result of the change from cum manu to sine manu marriage from the second century B.C. onwards. This change had a profound effect on inheritance practices, because women remained part of their familia of birth upon marriage and were, therefore, sui here- des to their pater familias. This led to a series of problems which did not (or scarcely) exist within a cum manu marriage.
In these conflicts, not only the material side of inheritance was at stake, but a non-ma- terial side as well: as sui heredes, women inherited not only property but also the sacra privata, the responsibility for the family spirits and rituals. As women could not have family mem- bers in potestate, this was seen as an undesirable situation, because it meant the end of the family line. On the other hand, women who became sui heredes could become the victims of ‘inheritance raiders’, who tried to force themselves upon her as her tutor in order to claim her property after death. The problems which resulted from this change in marriage tradi- tion were eventually solved by legislation and social convention. The analysis of this paper leads to renewed insights into the effects of the change in marital tradition on Roman inher- itance law and the conflicts that could occur from the Roman concept of sacra.
17:30 - 18:00 Elisabeth Herrmann-Otto (Trier) “Sklavenfreilassungen und die Interessen der Erben”
Slave liberation and the interests of the heirs
Roman slave liberation was legally strictly regulated and was socio-politically and eco- nomically very significant. Emancipation played a large role in the relationship between mas- ters and their slaves, especially in its fully legitimate form which granted Roman citizenship as well as the complete freedom of the slave. On the other hand, the ‘good conduct’ of the slave opposed the master’s emancipation contract, in that the Insitute of Slave Emancipation itself contributed to the continuation of slavery. Whenever the release of a slave was carried out, it was usually in both parties’ best interests: the master benefited from social prestige and economic gain; the slaves benefited from their personal freedom and economic independence.
Whether the release of slaves was considered so positively by descendants and heirs however, has not until now been extensively researched. The limitations of testamentary emancipation of slaves in the Lex Fufia Caninia should be kept in mind while examining the underlying motivations of these Augustan laws with regard to the state, society and family. In a second step, the various forms of slave release that the descendants and/or heirs dealt with will thereupon be reviewed, whether the releases were accepted or whether strategies were developed to postpone them, avoid them or to declare them invalid. In the process, priority is given to the manumissio testamento, fideicommissaria, condicione etc. The many sta- tus trials (causae liberales), the countless bona fide servientes and the statu liberi shed light on these manipulation techniques. To finish, I will broach the issue of whether and under what conditions the libertus orcinus constituted an act of outright defiance towards the successors.
Vendredi 22 mars 2013
Session 4 : Antiquité tardive [présidence : James Howard-Johnston]
09:30 - 10:00 Richard Payne (Princeton) “Inheritance Law and Practice among the Sassanids”
Iranian society in late antiquity was thoroughly patrilineal. The spirits of paternal ancestors shaped an individual’s character, dispositions, and capacities for action. Landed wealth was in large measure locked into patrimonies only male descendants could inherit. Lineage was thus the principal determinant of status, and only men of noble lineage – whether grand, middling, or lesser – were worthy of wielding imperial authority.
On account of the patrilineal structure of social, political, and economic relations, Iran’s aristocratic hierarchies are often regarded as stable, even fixed. But two phenomena put patrimonies and patrilineages continually in peril. On the one hand, the vagaries of male death frequently left noble houses headless and sonless. On the other, paternal uncles, brothers, and other patrilineal kin vied – sometimes violently – for control of their patrimo- nies. The present paper will examine the corpus of Iranian law as a package of institutions developed on the basis of Zoroastrian cosmological thought to guarantee the uninterrupt- ed transmission of the lands and lineages on which the stability of the imperial order was predicated. Institutions of inheritance will emerge as central features of Iran’s political culture late antiquity.
10:00 - 10:30 Carlos Sánchez-Moreno Ellart (Trier) “Late Antique Law on Inheritance”
The late antique law of inheritance has been tackled with the contrast between classi- cal Roman law and vulgar Roman law as a starting point. My paper is focus on the decadence of the socalled classical Roman will and the emergence of a will defined mainly by the impe- rial constitutions enacted in the fourth century AD as free from its traditional requirements. The usual approach to this period pinpoints some features from this legislation and from the documents as elements of the so-called ‘Roman vulgar law’. This stylistic approach, which is essentially right, sometimes proves to be insufficient since it ignores that the late imperi- al legislation just developed the tendencies incorporated in the law of successions from at least the beginning of the 1st century AD. I will try to point out the internal logic of this development and to explain in which logical framework some of these legal developments can be understood.
10:30 - 11:00 Judith Evans-Grubbs (Emory) “Illegitimacy and Inheritance in late Roman Law”
Illegitimate children (those born outside of legal marriage) have posed a problem for family inheritance strategies in most western societies: how to safeguard the transmission of paternal property to the next generation of lawful heirs while satisfying emotional or moral claims from children born in concubinage or even in short-lived extramarital rela- tionships? This paper looks at the changing legal attitudes toward the rights of illegitimate children in late Roman law, and what those changes meant for individual families. I focus mainly on the situation of naturales, illegitimate children of men (particularly men holding some official position) from unions with slaves, former slaves, or other lowborn women with whom marriage was forbidden or strongly discouraged.
In earlier Roman law, although a man’s illegitimate children had no inheritance rights upon intestacy, he might leave them a legacy in his will (after freeing any slaveborn children). But beginning with Constantine, the legal attitude toward illegitimate children changed and underwent many fluctuations until Justinian removed all marriage restrictions between those of different status and enabled naturales to inherit. Extant legislation from the 4th-6th centuries allow us not only to follow these legal changes but to see the personal relationships and family disputes behind them. My paper uses the laws and non-legal evidence like Liba- nius and patristic writers, to explore these family dynamics. I will conclude with a brief look at the situation of illegitimates in early modern Florence, where the presence of domestic slavery and the use of Roman law created conditions comparable to those in late antiquity.
11:30 - 12:00 Sabine R. Huebner (Rome/Berlin) “It is a difficult matter to be wronged by strangers, but to be wronged by kin is worst of all – Inheritance and Conflict in Graeco-Roman Egypt”
The life cycle of a household was tightly connected with the ways in which resources were transferred between generations. These property transmissions afflicted intergenera- tional, gender and sibling relationships and were associated with negotiations about rights and obligations of kin. Inheritance was only one, although the most important one of them. Others were the allocation of dowries upon marriage, gifts inter vivos, or retirement con- tracts. In Roman Egypt, inheritance was partible and sons as well as daughters inherited. Dowries for daughters were usually subtracted from their share of the inheritance. Sons in- herited at their father’s death, usually equally, at least if their father died intestate. If a father wrote a will, the eldest son often received a slightly larger share than his younger brothers, but generalizations are not possible, and in general, partible inheritance, even if not in its most radical form of complete equality of all of the children, seems to have been the norm in Roman Egypt. The Athenian concept of the πκληρος seems to have been unknown in Graeco-Roman Egypt. Other than in classical Athens, women in Roman Egypt could hold property in their own right and daughters were able to inherit the entire patrimony if there were no sons.
We have evidence from the New Kingdom and the Late Period for Egypt that siblings held their inherited patrimony jointly and the eldest son acted as trustee and administrator of the property for the community of heirs, organizing the farming or leasing of the land allocating to each of the siblings their respective revenues. If the patrimony was to be di- vided among the siblings, the eldest son received a double share and could choose first. In Roman times a similar system seems to have been at play in the rural multiple family house- holds consisting of several married brothers with their families. Property was held κοινν κα διαρετον “jointly and undivided”. Also here, the eldest acted as head of household and represented the family to the outside world. The inheritance system in Roman Egypt seems to have followed indigenous Egyptian roots rather than Greek practice where only one son inherited and usually at a certain point during his father’s lifetime, not just upon his death.
In this paper I study among others a petition from late 3rd century Oxyrhynchus in which a certain Aurelia Didyme asked the prefect for recovery of her inheritance. Her moth- er and the latter’s two brothers had held the property inherited from their parents jointly which comprised a house, slaves, furnishing, and immovable and movable goods, and had continued living together in their natal home. When Aurelia Didyme’s mother died, howev- er, her two uncles conspired to defraud the orphan girl of her rightful inheritance. Aurelia Didyme starts her petition with the words: “It is a difficult matter to be wronged by strangers, but to be wronged by kin is worst of all.
12:30 - 12:30 Maria Nowak (Warszaw) (Warszaw) “The Non-Normative Family in the Wills from Greco-Roman Egypt”
The purpose of the paper is to present the legal situation of non-normative families in Graeco-Roman Egypt in the light of papyri concerning testaments and succession. One of the most important juridical sources regarding this problem is Gnomon of Idios Logos. It contains information on law of the personal status and succession in Graeco-Roman Egypt. Among these norms we find direct and indirect references to the legal situation and testa- menti factio passiva of the children born out of wedlock (i.e. § 11–13, 18, 23, 34, 35, 38, 39, 45–48, 50, 54).
Gnomon of Idios Logos is not entirely clear. It offers as questions as the answers. We do not know whether children born in the unions not recognized by Roman rulers were entitled to succession after their parents, whether their status somehow implied their ability of ac- quiring goods via wills composed by their parents, and how far (if at all) it was restricted by the rights of legitimate children. On the other hand, the extramarital children are present in the texts of legal practice, viz. wills from Hellenistic and Roman Egypt (some testaments belonging to P. Petrie I2 roll, SB XVIII 13168, P. Köln II 100, P. Mich IX 549, P. Sijp. 43, P. Oxy. I 104, PSI XII 1263, P. Col. X 267, FIRA III 47, BGU I 326), which need to be compared with the legal position of extramarital children in the testamentary succession as evinced in the juridical sources.
Session 5 : Byzance [présidence : Frédéric Bauden]
14:30 - 15:00 James Howard-Johnston (Oxford) “Partitive Inheritance in Principle and Practice in 11th century Byzantium”
The paper will have five sections:
1. Introduction to the Peira of the Magistros Eustathios Romaios, a unique collection of judgements and legal opinions of an early eleventh century high court judge in Byzan- tium, which survives in a single manuscript dating from the first half of the fifteenth centu- ry. Eustathios’ career is summarised, and something is said about the character of the text. It should be stressed that relatively little scholarly attention has been devoted to the Peira.
2. A key principle of Roman law, that of the minimum legal portion of an estate re- served for the children of the deceased, is traced from its origin in the Lex Falcidia issued under Augustus to Late Antiquity, when it was incorporated into the Corpus Iuris of Justini- an, and beyond into the middle ages, when it reappears in the Ecloga promulgated by Leo III in 741 and in the Basilica, the full compendium of law inherited from Rome, rearranged in 60 books and translated into Greek, which was completed in the reign of Leo VI (886-912).
3. The Magistros Eustathios’ interpretation of the Lex Falcidia is examined, in par- ticular his decisions on what expenses were to be deducted before the law was applied to the estate, what exactly were the portions of varying numbers of children, by what mechanisms the missing legal portion of a disinherited child should be made up, the timing of the dis- tribution of legal portions and the principle of equal entitlement on the part of daughters.
4. Some specific cases brought before Eustathios are examined, to establish the de- gree to which legal practice conformed to the law as codified.
5. Attention then turns to the principal social consequence of partitive inheritance, the cohesion of kin groups at the level of the peasant village and the great estate, and to the ways in which this in turn restricted freedom of action on the part of the crown.
15:00 - 15:30 Jean-Claude Cheynet (Paris) “Les monastères dans les conflits d’héritage d’après les tribunaux ecclésiastiques (xie-xve s.)”
La conservation des patrimoines obsédait les familles byzantines, tout particulièrement quand elles avaient du bien et appartenaient à l’aristocratie. L’entrée au monastère d’un héritier venait troubler le bel ordonnancement de leur dévolution. Parfois la création d’un monastère servait à consolider une fortune, mais le plus souvent l’établissement se posait en rival des autres héritiers. Il disposait d’une arme redoutée, la maîtrise des prières pour le salut des défunts. Divers affaires permettent de voir les différents cas de figure qui ont pu survenir, mais la majeure partie sont des contestations portant sur des biens dotaux ac- cordés aux monastères en l’absence d’héritiers directs. Ces quelques exemples montrent la justesse de l’idée d’A. Laiou selon laquelle les familles essayaient de limiter les divisions des patrimoines familiaux et de les reconstituer après deux générations. Les luttes les plus ar- dentes opposaient souvent des cousins germains. Les jugements de Dèmètrios Chômatianos constituent la source principale sur les querelles d’héritage, suivi des décisions du tribunal patriarcal au siècle suivant.
Byzantine families were obsessed with preserving their inheritance, especially when they owned properties and belonged to the aristocracy. The entrance of an heir into a mon- astery disturbed the beautiful ordering of property distribution among heirs. Sometimes, the foundation of a monastery helped consolidate a fortune, but more often, the monastery became a rival of the other heirs. It had a really feared weapon: it controlled prayers for the salvation of the dead. Various cases give an insight into the many different scenarios that could occur, but, for the most part, the most common situation was a dispute over the dowry granted to monasteries in the absence of direct heirs. These few examples support idea of A. Laiou’s idea that families tried first to limit the partition of their patrimony and then tried to reassemble it after two generations. The most ardent struggles often opposed cousins. The main sources on quarrels about inheritance are Demetrius Chômatianos judgments, followed by patriarchal court decisions in the next century.
16:00 - 16:30 Olivier Delouis (Paris) “Distraire l’héritage : monastères et héritiers à Byzance”
Si, pour une institution chrétienne, un don reçu de façon spontanée ou par voie tes- tamentaire est un cadeau de Dieu, et si, pour un donateur, ce même don doit permettre la rémission de ses fautes et son salut par la prière perpétuelle pour son âme, en revanche, pour la famille du donateur, la situation est toute différente. La donation peut s’apparenter en effet à une distraction d’héritage, à savoir à une séparation, à un retranchement d’une partie ou de la totalité d’un bien normalement attendu par les héritiers légitimes. Parce que dans les sources byzantines, les monastères – qui nous intéresseront ici – ont plus souvent la parole que les héritiers, nous connaissons assez mal les conflits familiaux entraînés par de telles donations pieuses. Cependant, les actes de la pratique, les typika ou règles de fondations mo- nastiques, ainsi que les actes des tribunaux, permettent d’évaluer les difficultés entraînées par une générosité trop personnelle. Nous présenterons quelques exemples concrets, puisés particulièrement dans les archives du Mont Athos, pour le Moyen Âge central et tardif, et nous tenterons de voir quelles parades ont été trouvées par les donateurs pour contrer leur plus grande menace : leur propre famille.
If, for a Christian institution, a gift received spontaneously or by will is a gift from God, and if for a donor, that same gift is meant to allow the forgiveness of his sins and bring his salvation through perpetual prayer for his soul, for the donor’s family, in contrast, the situation is quite different. The donation may be similar in effect to a capture of inheri- tance, namely to a separation, a retrenchment of part or all of a property normally expected by the legitimate heirs. Because in the Byzantine sources, monasteries – which interest us here – voice more often their opinion than the heirs, we know little of the family conflicts caused by such pious donations. However, legal documents, typika or monastic foundations rules, as well as court’s decisions allow us to assess the difficulties caused by an individual’ s too personal generosity. We shall present some concrete examples drawn particularly from the archives of Mount Athos, during the middle and late byzantine periods, and we will see what parades were found by donors to address the greatest threat to their donation: their own families.
16:30 - 17:00 Thierry Ganchou (Paris) “L’héritage Goudélès à Gênes : deux siècles de conflit familial (ca. 1423-1639)”
Samedi 23 mars 2013
09:00 - 09:30 Gerhard Lubich (Bochum) “Incestuous Marriage, Family Murders and Civil Wars : Becoming an Heir in Merovingian Times”
Succession within the roman imperial family didn’t rely on biological fortuity alone: By including relatives by adoption, in-laws and more distant kin, succession was subject to long- term political planning. Medieval practice, in contrast, is usually thought of as focussing on the “blood-line”, i.e. an exclusively agnatic system of transfer from father to son(s), thus limit- ing the royal family to a predominantly biological entity, dominated by its male members.
This practice seems to have been taken to extremes by the Merovingians, the first long-last- ing medieval dynasty: entitled to succession and inheritance were not only legitimate sons, but all male offspring; neither the status of the relation between king an mother (marriage / con- cubinage) nor her social status played a role. By focussing on the father-son succession alone, the Merovingian family represented a self-sufficient entity without genealogical ties to society. But as soon as the pater familias demised, this construction proved to be substantially frail and unfit to secure peace within the family. The remaining siblings fought each other; uncles killed nephews, fathers their sons, incestuous marriage occurred to secure inheritance. The resulting instabilities qualified as bella civilia, hence transposing a family affair to a “business of the state”.
The question pursued in this paper will not interpret these shortcomings as a result of a “failed” state, but focus on the underlying family model. At the transition to a post-roman society, the model of the nuclear family as promoted by Christianity was not yet established; parts of the Merovingians’ behaviour makes more sense if regarded as derived not from “fam- ily” but from the antique familia as the community surrounding the dominating pater familias.
09:30 - 10:00 Ellen Widder (Tübingen) “Schicksalsschlag oder Strukturproblem? Dynastische Brüche und Herrschaftssukz- ession im Spätmittelalter”
A stroke of fate or a structural problem? Dynastic failures and succession of power in the late middle ages
The dominant ruling system in the late Middle Ages was the dynasty. This is taken to mean an aristocracy, based on kinship and appointing power to a family group, the rule of which was passed down from father to son or father to sons. This system was under the constant threat of extinction by the absence of or the premature loss of (male) heirs.
In previous research, the problem of looming or apparent dynastic failures, or the end of a reigning family, has been the object of our attention on several occasions; however the phenomenon and its implications have not yet been analysed comparatively.
One of the SFB projects, funded by the German Research Foundation, is dedicated to the exploration of this subject in the late Middle Ages and is under my supervision at the Univer- sity of Tubingen. In the conference contribution below various aspects of the phenomenon are discussed: how did the various members of a ruling family deal with the constant threat of the lack of an heir, did they even really see it in this light, how was it interpreted and how did they approach the problem? How did they deal with infertility and were there alternative ways to secure the continuation of a reign? The legal dimension of the issue is certainly still the most familiar aspect (adoption, arrogation, inheritance contracts), but levels of interpretation and approaches to the problem could also be based on religious or familial grounds. It is on these grounds that Rene’ Anjou’s enlightening report lays its foundations.
In this paper various examples of aspects of this subject will be discussed, both in their fundamental principles and from a European perspective. In the process, the phenomenon of dynastic failure will be considered value-neutral, and will be looked at from multiple perspec- tives rather than being interpreted as simply the driving force of constitutional developments.
10:00 - 10:30 Cameron Sutt (Austin Peay State University) “Patrimony, Estates and the Kindred. Dividing the Goods in Árpád-era Hungary”
According to the earliest legal sources for the kingdom of Hungary (11th and early 12th century), inheritance rules focused upon the status of the land in question with the prima- ry distinction being that between land acquired through royal donation and that obtained through purchase. In the sixteenth-century Tripartitum opus iuris consuetudinarii by Stephen Werbcy, we see a much more developed system but one still dominated by the status of the land. Land could be classified as either ancestral land of the kindred, or that obtained by royal donation. Land considered part of the ancient kindred was subject to numerous re- strictions, all of which were designed to maintain the integrity of the ancestral lands while land held through royal donation could be disposed of freely with the provision that land returned to the crown in the event of the lack of a direct heir. In contrast, kindred lands passed to collateral relatives, including cousins. In the charter evidence of the thirteenth and fourteenth centuries, we see some of these principles at work while others are notably absent. Unsurprisingly, there appears to be a much more flexible approach to the inheritance rules than the legal prescriptions would imply, and families employed various strategies to maintain the integrity of their holdings and to maintain the peace among family members.
11:00 - 11:30 Yves Sassier (Paris) “Un conflit entre héritières devant la justice royale au cœur du XIIIe siècle : la dislocation du grand comté de Nevers-Auxerre-Tonnerre”
Session 7 : Islam [présidence : Jean-Claude Cheynet]
11:30 - 12:00 Frédéric Bauden (Liège) “Biens de mainmorte familiaux ou comment éviter la division de la propriété à l’époque mamelouke”
Les règles juridiques relatives à l’héritage en Islam sont fixées très précisément en ver- tu des préceptes édictés dans le Coran. Très tôt, la possibilité d’instituer une partie de l’hé- ritage en fondation charitable (waqf) est apparue sur base de traditions prophétiques. Fixée selon des normes bien définies, ce type de fondation a connu une évolution qui a conduit à des dérives à certaines époques. L’une d’entre elles concerne la fondation charitable instituée au profit des héritiers du fondateur (waqf ahl/dhurr ou waqf familial) ou du fondateur lui- même (waqf ‘al l-nafs). À l’époque mamlouke, ces deux types de fondation connurent un succès sans égal auprès de l’élite militaire. L’une des raisons, sinon la raison première, qui se cache derrière cet engouement pour cette forme d’héritage est qu’elle permettait d’éviter la dispersion du patrimoine entre les nombreux descendants d’une personne tout en ga- rantissant à ces derniers un revenu. En outre, les règles de l’héritage pouvaient aussi être contournées de manière subtile, ce qui n’était pas sans susciter des jalousies au sein des hé- ritiers. Critiquée par certains juristes, cette forme d’héritage a néanmoins servi les intérêts économiques et sociaux d’une partie de l’élite pendant plusieurs siècles. Notre propos sera d’analyser, pour l’époque considérée, les circonstances qui ont conduit au développement ex- traordinaire de ces fondations, les modalités d’accompagnement pour accomplir les volontés du fondateur et les conflits qui pouvaient surgir parmi les héritiers.
The legal rules of inheritance in Islam are set very precisely by precepts laid down in the Koran. Very early on, the possibility of establishing a part of the legacy as a charitable foundation (waqf) emerged based on prophetic traditions. Determined according to well-de- fined standards, this type of foundation underwent an evolution, leading to abuses at certain periods of time. One type of abuse concerns the charitable foundation established in favor of the founder’s heirs (Waqf Ahli / dhurr or family waqf) or in favor of the founder himself (waqf ‘ala l-nafs). During the Mamluk period, these two types of foundation experienced unparalleled success with the military elite. One of the reasons, if not the main reason, be- hind this enthusiasm for this form of inheritance is that it made it possible to avoid the dis- persion of wealth among the many descendants of a person, while guaranteeing them a in- come. Moreover, the rules of inheritance could be circumvented in a subtle way, though not without arousing jealousy among heirs. Criticized by some lawyers, this form of inheritance has nevertheless served the economic and social interests of a part of the elite for centuries. Our purpose is to analyse the circumstances that led to the extraordinary development of these foundations during the Mamlouk period, the ways of honoring the founder’s wishes and the conflicts that might arise among the heirs.
12:00 - 12:30 Lahcen Daaif (Paris) “L’égalité entre hommes et femmes dans les actes de waqfs mamelouks. Un défi à la loi ?”
Sur environ 3000 documents légaux que renferme la base de données CALD (Com- paring Arabic Legal documents) établie dans le cadre du projet européen ILM (Islamic law materialized) plus de la moitié sont d’époque mamelouke et les waqfiyyt en constituent une partie non négligeable. Parmi les nombreuses clauses dont font état ces waqfiyyt, l’égalité entre les hommes et les femmes est l’une des plus courantes et frappantes à la fois. Dans ces waqfiyyt, le wqif, le musulman fondateur du waqf –que celui-ci soit une fondation pieuse (ayr) ou un bien de mainmorte familial (ahl)– insiste souvent sur le partage égal des reve- nus du waqf entre les bénéficiaires parmi ses héritiers comme parmi les pauvres et les néces- siteux, sans discrimination des femmes. Rares sont en effet les waqfiyyt qui observent la loi coranique de l’héritage selon laquelle la femme a droit à la moitié de ce qui revient à l’homme.
Tout en le confrontant aux règles du droit successoral, on abordera ce thème en s’inter- rogeant sur la nature des raisons pour lesquelles ces fondateurs du waqf ont opté pour l’égalité entre les deux sexes. Y aurait-il une explication d’ordre purement juridique qui aurait favorisé cette tendance, spécialement à l’époque mamelouke ? Dans la mesure où les awqf (plur. waqf) ont connu un essor fulgurant sous les Mamelouks, peut-on rattacher cette insistance sur l’éga- lité à une politique juridico-religieuse qui aurait été encouragée par les autorités de l’époque ?
About 3000 legal documents are contained in the database CALD (Comparing Arabic Legal Documents) established thanks to the European project ILM (materialized Islamic law), more than half of these documents date to the Mamluk period and, among them, the waqfiyyt constitute a significant part. Among the many clauses included in such waqfiyyt, equality between men and women is one of the most common and it is striking at the same time. In these waqfiyyt, the Waqif, founder of the Muslim waqf- whether a pious founda- tion (Hayri) or a family property in mortmain (Ahly) – often insists on the equal sharing of income among the beneficiaries of the waqf among his heirs as among the poor and needy, without discriminating women. Few indeed are the waqfiyyt, which observe the Islamic law of inheritance according to which a woman is entitled to half of what is given to a man.
While confronting this fact with the rules of inheritance, we shall address the question of why these waqf founders opted for equality between the sexes. Is there a purely legal ex- planation which would account for this trend, especially during the Mamluk period? Insofar as the Awqaf (plural waqf) have skyrocketed under the Mamluks, can we relate this insis- tence on juridico-religious equality to a policy encouraged by the authorities of the time?
CONFÉRENCE INTERNATIONALE COLLÈGE DE FRANCE 52 RUE DU CARDINAL-LEMOINE 75005 PARIS
ANR-10-LABX-72
Session 1 : Grèce ancienne [présidence : Sabine R. Huebner]
10:00 - 10:30 Heinz Barta (Innsbruck) “Genese des griechischen Erbrechts und des Testaments”
‘The development of Greek inheritance and wills’
In Greece, archaic religions and traditions of ancestor worship were still as important to the house/oikos and family (and therefore to law) as the succession to an estate. First of all I will examine the prior conditions that led to the development of inheritance law and give an account of this development thereby differentiating between intestate inheritances and testamentary inheritances. Inheritance law is one of the oldest areas of the law, after family law and property law. The political community took part in deciding the position of individual family members in a family and a line of descent. Solon strengthened and expanded the legal status of individual citizens without impairing family bonds. A private- ly-developed legal body was an essential condition for the political development towards democracy. Originally religion, customs, morals and law were intrinsically interconnected; a normative amalgam existed, referred to as Nomological Knowledge by M. Weber. The separation of these elements happened gradually over a long period of time. – Solon set the ball rolling by allowing adoptive sons to be chosen over biological children (by the hosts/ kyrios). The question of Solon’s, ‘Law concerning wills’ is a disputed one, I follow the opin- ions of E. F. Bruck and R.Maschke whereby Solon created neither the Adoption Testament, nor the Legacy Testament, but did encourage their development. Jan Assmann has labeled it as: ‘death as a generator of culture’. – Inheritance law is closely connected to death and, together with Family Law, generates the norms by which a society lives. – Adoption came about in order to ensure the continuation of family and Oikos (Family Law) and from that, (firstly publicly) the Adoptive Will was developed (Inheritance law). – In addition to the Adoptive Will, the Will of Bequest was created (from endowment upon death) and with re- gards to this the Execution of the Will evolved. Chronologically, the two forms of will, from which the modern will developed, emerged between Solon’s legislation (594/3 v.: terminus post quem) and the last decade of the fifth Century (terminus ante quem). In my summary I examine ‘Parental Separation’, ‘Lawful Inheritance’ (where the bloodline is known) and the ‘Development of the Will’ (as a one sided testamentary instruction).
10:30 - 11:00 Martin Steinrueck (Fribourg) “ ‘Le dernier souper du Cyclope’ : l’iambe archaïque grec comme expression d’un groupe de jeunes hommes sans héritage”
En continuation d’un livre, cette intervention tente d’expliquer les problèmes d’inter- prétation de Théognis 731-752, 1123ss., Odyssée 2.17-23 ainsi que de plusieurs textes de la tradition iambique par une hypothèse selon laquelle les « jeunes hommes », néoi andres, célibataires, les deuxième-nés, les fils illégitimes sans héritage ne créaient pas seulement leur propre discours (l’iambe), mais aussi, comme Platon le dit, une force politique parfois dangereuse pour la cité.
11:30 - 12:00 Beate Wagner-Hasel (Hannover) “Agamemnons Töchter. Erbe und Macht in Homerischen Epos”
Im 9. Gesang der Ilias macht Agamemnon dem zornigen Achill ein Versöhnungsange- bot. Er bietet ihm die Heirat mit einer seiner Töchter an und die Verfügung über sieben Städte. Es wird in der Forschung kontrovers diskutiert, ob es sich bei dem Angebot um eine überdimensionierte Mitgift handelt oder ob beides, Heirat und dieVergabe von sieben Städ- ten, gar nicht zusammen gehören. Die Deutung hängt eng mit der Frage nach dem Charak- ter des Homerischen Erb- und Ehesystem zusammen. Der Vortrag beschäftigt sich speziell mit der Frage, wie Rangpositionen in der Welt des frühgriechen Epos vererbt werden und welche Rolle Töchter dabei spielen.
12:00 - 12:30 Brenda Griffith-Williams (University College London) “Matrilineal Kinship in Athenian Inheritance Disputes : Two Case Studies”
Succession rules tend to reflect the normal family structures in a particular society, but their rigid application is sometimes perceived as unfair, especially when more complex patterns of kinship are created by remarriage after death or divorce.
The Athenian order of collateral succession gave precedence to those related to the deceased on his father’s side. Even a homometric half-brother ranked lower than a patrilineal cousin, reflecting the reality that homometric half-siblings belonged to different oikoi. When a widow or divorcee remarried, the newly constituted household might include her new husband’s children by different wives, but any children from her previous marriage would normally remain in their paternal oikos, under the tutelage of a guardian if their father had died while they were minors.
We know of two Athenians whose unusually close ties of affection with their stepfa- thers led to conflict between their (patrilineal) next of kin and a matrilineal kinsman whose blood relationship to the deceased was closer. In Isaios 9, Astyphilos grew up in the same household as his homometric half-brother because his mother’s second husband was also
his guardian. His estate was contested by the half-brother against a patrilineal first cousin. In Isaios 7, Apollodoros was brought up after his father’s death by a guardian who tried to defraud him of his inheritance, so his stepfather took him into his own family and helped him in successful legal action against the guardian. When Apollodoros’s only son died unex- pectedly, he turned to his homometric half-sister to give him an adopted son. The adoption was challenged after his death by a patrilineal cousin.
We cannot tell how typical these cases were, but the forensic strategies adopted by the two speakers provide some insight into the tensions created by the claims of matrikin in a predominantly patrilineal inheritance system.
Session 2 : Judaïsme [présidence : Carlos Sanchez Moreno Ellart]
14:30 - 15:00 Giles Rowling (Macquarie University, Sydney) “Babatha’s Archive : Inheritance disputes in Second Century Roman Arabia”
At some time after the establishment in 106 CE of the former Kingdom of Nabataea as the Roman province of Arabia, Babatha and Yehudah, Jewish residents in the Province, mar- ried under a Ketubbah or marriage agreement. Babatha had an infant son by her first husband and Yehudah a daughter Shelamzion by his first and concurrent wife Miriam. While married to him, Babatha lent money to Yehudah.
Babatha brought proceedings before the provincial Governor for the payment of a greater sum for maintenance of her son and apparently intended that he should proceed against them after the termination of the guardianship.
After his death Babatha seized date groves formerly the property of Yehudah to se- cure her rights under her Ketubbah and her unpaid loan to him and Miriam had also seized property of Yehudah. Babatha and Miriam brought proceedings against each other before the Governor complaining about their respective seizures, in which Miriam asserted that Babatha had no rights against the property of Yehudah.
After her marriage, Yehudah had given Shelamzion a courtyard, by which he appears to have intended to make provision for her in case he should have a son who would, under Mishnaic law, be his heir to her exclusion.
The guardians of infant orphan nephews of Yehudah brought proceedings before the Governor against Babatha to recover date groves registered in her name by Yehudah assert- ing that they were the property of the nephews. I argue that since Shelamzion was the only child of Yehudah she was his heir, and not the nephews, and that their claim was for a share in the property of the grandfather of themselves and of Shelamzion, and that registration of the groves in her name had given Babatha no rights in them.
15:00 - 15:30 Nicholas A. E. Kalospyros (Athens) “Towards the Allegory of Idealized Oikos : The Nuclear and Extended Family Versions, Their Succession and Inheritance Issues and Their Cognates in Philo Judaeus”
Beyong the notion of allegory and allegoresis as hermeneutic techniques we could trace interesting elements concerning nuclear and extended family structure and relationships (esp. marriage, parents and children, extended kin, gender roles) in the numerable treatises of the Jewish-Hellenistic philosopher and writer Philo of Alexandria, so as to verify the thematic view of family-oikos in the Graeco-Roman world, under the keen spectrum of a prolific author and post-Platonic allegorist. The perception of family-beyond-household bounds, along with the study of relevant inheritance and succession conflicts and family cognates in the Philonian world, seems like an epitome of the Biblical creation, whilst at the same time enables us to form linguistic and stylistic devices of recognizing his theory of family membership and in Hellenistic antiquity. My paper aspires to set off the archaiognostic reading of an allegorical hermeneutic tradition including the formation of idealized oikos and its succession patterns, upon the philological documentation which is necessary for the establishing of such a study direction. The allegorical reduction of oîkos enables the bridging of the gap between the nat- ural creation and the realm of universal nature amidst the unique nature (physis) of humanity. Oîkos, then, is metaphorically elevated above any other typical thesmos physeos, just like each one of the ten commandments is called. Philologically speaking and in Philo’s terms, we have reached the literary scope of transcendental expression in Graeco-Judaean literature.
Session 3 : Rome [présidence : Mireille Corbier]
16:30 - 17:00 Amber Gartrell (Oxford) “Unequal Brothers : An Exploration of the Inheritance and Succession Strategies of Imperial Heirs under Augustus”
The development of a succession policy was crucial for Augustus in order to des- ignate an heir to his extraordinary collection of clients, powers and honours. However an inherent issue of any such policy was that there was no constitutional basis for either Au- gustus’ role or for a designated successor to it. This unusual situation therefore raises ques- tions of to what extent traditional inheritance policies and familial legislation should be considered applicable to the imperial succession.
This paper shall investigate an inheritance strategy in which young men of the imperi- al household were paired as heirs. Such pairings include Tiberius and Drusus the Elder, Gaius and Lucius Caesar, and Germanicus and Drusus the Younger. Through an analysis of the com- parative prominence of these heirs, I shall suggest that such pairings were often unequal. This paper shall examine why one heir might be favoured above another, considering the difference between biological and adoptive relationships and the possible benefit of primogeniture.
This paper shall analyse the relationships between the heirs, the Emperor and other members of the imperial family. I shall explore the conflicts which arose and the strategies which developed to cope with them during the first imperial succession. I shall focus upon a particular strategy designed to compensate for the difficulties of unequal pairings: the com- parison of the heirs with the Dioscuri, brother gods famed for their fraternal piety. Through an exploration of these paired heirs, the paper shall shed light upon the relationships, con- flicts and strategies of the imperial family during the development of the first imperial succession policy.
17:00 - 17:30 Coen van Galen (Nijmegen) “Keeping the Family Spirit alive : Roman Women and Inheritance Conflict”
This paper will examine inheritance conflicts involving Roman female citizens in the late republic and the way in which Roman legislators tried to solve these conflicts. Problems occurred as a result of the change from cum manu to sine manu marriage from the second century B.C. onwards. This change had a profound effect on inheritance practices, because women remained part of their familia of birth upon marriage and were, therefore, sui here- des to their pater familias. This led to a series of problems which did not (or scarcely) exist within a cum manu marriage.
In these conflicts, not only the material side of inheritance was at stake, but a non-ma- terial side as well: as sui heredes, women inherited not only property but also the sacra privata, the responsibility for the family spirits and rituals. As women could not have family mem- bers in potestate, this was seen as an undesirable situation, because it meant the end of the family line. On the other hand, women who became sui heredes could become the victims of ‘inheritance raiders’, who tried to force themselves upon her as her tutor in order to claim her property after death. The problems which resulted from this change in marriage tradi- tion were eventually solved by legislation and social convention. The analysis of this paper leads to renewed insights into the effects of the change in marital tradition on Roman inher- itance law and the conflicts that could occur from the Roman concept of sacra.
17:30 - 18:00 Elisabeth Herrmann-Otto (Trier) “Sklavenfreilassungen und die Interessen der Erben”
Slave liberation and the interests of the heirs
Roman slave liberation was legally strictly regulated and was socio-politically and eco- nomically very significant. Emancipation played a large role in the relationship between mas- ters and their slaves, especially in its fully legitimate form which granted Roman citizenship as well as the complete freedom of the slave. On the other hand, the ‘good conduct’ of the slave opposed the master’s emancipation contract, in that the Insitute of Slave Emancipation itself contributed to the continuation of slavery. Whenever the release of a slave was carried out, it was usually in both parties’ best interests: the master benefited from social prestige and economic gain; the slaves benefited from their personal freedom and economic independence.
Whether the release of slaves was considered so positively by descendants and heirs however, has not until now been extensively researched. The limitations of testamentary emancipation of slaves in the Lex Fufia Caninia should be kept in mind while examining the underlying motivations of these Augustan laws with regard to the state, society and family. In a second step, the various forms of slave release that the descendants and/or heirs dealt with will thereupon be reviewed, whether the releases were accepted or whether strategies were developed to postpone them, avoid them or to declare them invalid. In the process, priority is given to the manumissio testamento, fideicommissaria, condicione etc. The many sta- tus trials (causae liberales), the countless bona fide servientes and the statu liberi shed light on these manipulation techniques. To finish, I will broach the issue of whether and under what conditions the libertus orcinus constituted an act of outright defiance towards the successors.
Vendredi 22 mars 2013
Session 4 : Antiquité tardive [présidence : James Howard-Johnston]
09:30 - 10:00 Richard Payne (Princeton) “Inheritance Law and Practice among the Sassanids”
Iranian society in late antiquity was thoroughly patrilineal. The spirits of paternal ancestors shaped an individual’s character, dispositions, and capacities for action. Landed wealth was in large measure locked into patrimonies only male descendants could inherit. Lineage was thus the principal determinant of status, and only men of noble lineage – whether grand, middling, or lesser – were worthy of wielding imperial authority.
On account of the patrilineal structure of social, political, and economic relations, Iran’s aristocratic hierarchies are often regarded as stable, even fixed. But two phenomena put patrimonies and patrilineages continually in peril. On the one hand, the vagaries of male death frequently left noble houses headless and sonless. On the other, paternal uncles, brothers, and other patrilineal kin vied – sometimes violently – for control of their patrimo- nies. The present paper will examine the corpus of Iranian law as a package of institutions developed on the basis of Zoroastrian cosmological thought to guarantee the uninterrupt- ed transmission of the lands and lineages on which the stability of the imperial order was predicated. Institutions of inheritance will emerge as central features of Iran’s political culture late antiquity.
10:00 - 10:30 Carlos Sánchez-Moreno Ellart (Trier) “Late Antique Law on Inheritance”
The late antique law of inheritance has been tackled with the contrast between classi- cal Roman law and vulgar Roman law as a starting point. My paper is focus on the decadence of the socalled classical Roman will and the emergence of a will defined mainly by the impe- rial constitutions enacted in the fourth century AD as free from its traditional requirements. The usual approach to this period pinpoints some features from this legislation and from the documents as elements of the so-called ‘Roman vulgar law’. This stylistic approach, which is essentially right, sometimes proves to be insufficient since it ignores that the late imperi- al legislation just developed the tendencies incorporated in the law of successions from at least the beginning of the 1st century AD. I will try to point out the internal logic of this development and to explain in which logical framework some of these legal developments can be understood.
10:30 - 11:00 Judith Evans-Grubbs (Emory) “Illegitimacy and Inheritance in late Roman Law”
Illegitimate children (those born outside of legal marriage) have posed a problem for family inheritance strategies in most western societies: how to safeguard the transmission of paternal property to the next generation of lawful heirs while satisfying emotional or moral claims from children born in concubinage or even in short-lived extramarital rela- tionships? This paper looks at the changing legal attitudes toward the rights of illegitimate children in late Roman law, and what those changes meant for individual families. I focus mainly on the situation of naturales, illegitimate children of men (particularly men holding some official position) from unions with slaves, former slaves, or other lowborn women with whom marriage was forbidden or strongly discouraged.
In earlier Roman law, although a man’s illegitimate children had no inheritance rights upon intestacy, he might leave them a legacy in his will (after freeing any slaveborn children). But beginning with Constantine, the legal attitude toward illegitimate children changed and underwent many fluctuations until Justinian removed all marriage restrictions between those of different status and enabled naturales to inherit. Extant legislation from the 4th-6th centuries allow us not only to follow these legal changes but to see the personal relationships and family disputes behind them. My paper uses the laws and non-legal evidence like Liba- nius and patristic writers, to explore these family dynamics. I will conclude with a brief look at the situation of illegitimates in early modern Florence, where the presence of domestic slavery and the use of Roman law created conditions comparable to those in late antiquity.
11:30 - 12:00 Sabine R. Huebner (Rome/Berlin) “It is a difficult matter to be wronged by strangers, but to be wronged by kin is worst of all – Inheritance and Conflict in Graeco-Roman Egypt”
The life cycle of a household was tightly connected with the ways in which resources were transferred between generations. These property transmissions afflicted intergenera- tional, gender and sibling relationships and were associated with negotiations about rights and obligations of kin. Inheritance was only one, although the most important one of them. Others were the allocation of dowries upon marriage, gifts inter vivos, or retirement con- tracts. In Roman Egypt, inheritance was partible and sons as well as daughters inherited. Dowries for daughters were usually subtracted from their share of the inheritance. Sons in- herited at their father’s death, usually equally, at least if their father died intestate. If a father wrote a will, the eldest son often received a slightly larger share than his younger brothers, but generalizations are not possible, and in general, partible inheritance, even if not in its most radical form of complete equality of all of the children, seems to have been the norm in Roman Egypt. The Athenian concept of the πκληρος seems to have been unknown in Graeco-Roman Egypt. Other than in classical Athens, women in Roman Egypt could hold property in their own right and daughters were able to inherit the entire patrimony if there were no sons.
We have evidence from the New Kingdom and the Late Period for Egypt that siblings held their inherited patrimony jointly and the eldest son acted as trustee and administrator of the property for the community of heirs, organizing the farming or leasing of the land allocating to each of the siblings their respective revenues. If the patrimony was to be di- vided among the siblings, the eldest son received a double share and could choose first. In Roman times a similar system seems to have been at play in the rural multiple family house- holds consisting of several married brothers with their families. Property was held κοινν κα διαρετον “jointly and undivided”. Also here, the eldest acted as head of household and represented the family to the outside world. The inheritance system in Roman Egypt seems to have followed indigenous Egyptian roots rather than Greek practice where only one son inherited and usually at a certain point during his father’s lifetime, not just upon his death.
In this paper I study among others a petition from late 3rd century Oxyrhynchus in which a certain Aurelia Didyme asked the prefect for recovery of her inheritance. Her moth- er and the latter’s two brothers had held the property inherited from their parents jointly which comprised a house, slaves, furnishing, and immovable and movable goods, and had continued living together in their natal home. When Aurelia Didyme’s mother died, howev- er, her two uncles conspired to defraud the orphan girl of her rightful inheritance. Aurelia Didyme starts her petition with the words: “It is a difficult matter to be wronged by strangers, but to be wronged by kin is worst of all.
12:30 - 12:30 Maria Nowak (Warszaw) (Warszaw) “The Non-Normative Family in the Wills from Greco-Roman Egypt”
The purpose of the paper is to present the legal situation of non-normative families in Graeco-Roman Egypt in the light of papyri concerning testaments and succession. One of the most important juridical sources regarding this problem is Gnomon of Idios Logos. It contains information on law of the personal status and succession in Graeco-Roman Egypt. Among these norms we find direct and indirect references to the legal situation and testa- menti factio passiva of the children born out of wedlock (i.e. § 11–13, 18, 23, 34, 35, 38, 39, 45–48, 50, 54).
Gnomon of Idios Logos is not entirely clear. It offers as questions as the answers. We do not know whether children born in the unions not recognized by Roman rulers were entitled to succession after their parents, whether their status somehow implied their ability of ac- quiring goods via wills composed by their parents, and how far (if at all) it was restricted by the rights of legitimate children. On the other hand, the extramarital children are present in the texts of legal practice, viz. wills from Hellenistic and Roman Egypt (some testaments belonging to P. Petrie I2 roll, SB XVIII 13168, P. Köln II 100, P. Mich IX 549, P. Sijp. 43, P. Oxy. I 104, PSI XII 1263, P. Col. X 267, FIRA III 47, BGU I 326), which need to be compared with the legal position of extramarital children in the testamentary succession as evinced in the juridical sources.
Session 5 : Byzance [présidence : Frédéric Bauden]
14:30 - 15:00 James Howard-Johnston (Oxford) “Partitive Inheritance in Principle and Practice in 11th century Byzantium”
The paper will have five sections:
1. Introduction to the Peira of the Magistros Eustathios Romaios, a unique collection of judgements and legal opinions of an early eleventh century high court judge in Byzan- tium, which survives in a single manuscript dating from the first half of the fifteenth centu- ry. Eustathios’ career is summarised, and something is said about the character of the text. It should be stressed that relatively little scholarly attention has been devoted to the Peira.
2. A key principle of Roman law, that of the minimum legal portion of an estate re- served for the children of the deceased, is traced from its origin in the Lex Falcidia issued under Augustus to Late Antiquity, when it was incorporated into the Corpus Iuris of Justini- an, and beyond into the middle ages, when it reappears in the Ecloga promulgated by Leo III in 741 and in the Basilica, the full compendium of law inherited from Rome, rearranged in 60 books and translated into Greek, which was completed in the reign of Leo VI (886-912).
3. The Magistros Eustathios’ interpretation of the Lex Falcidia is examined, in par- ticular his decisions on what expenses were to be deducted before the law was applied to the estate, what exactly were the portions of varying numbers of children, by what mechanisms the missing legal portion of a disinherited child should be made up, the timing of the dis- tribution of legal portions and the principle of equal entitlement on the part of daughters.
4. Some specific cases brought before Eustathios are examined, to establish the de- gree to which legal practice conformed to the law as codified.
5. Attention then turns to the principal social consequence of partitive inheritance, the cohesion of kin groups at the level of the peasant village and the great estate, and to the ways in which this in turn restricted freedom of action on the part of the crown.
15:00 - 15:30 Jean-Claude Cheynet (Paris) “Les monastères dans les conflits d’héritage d’après les tribunaux ecclésiastiques (xie-xve s.)”
La conservation des patrimoines obsédait les familles byzantines, tout particulièrement quand elles avaient du bien et appartenaient à l’aristocratie. L’entrée au monastère d’un héritier venait troubler le bel ordonnancement de leur dévolution. Parfois la création d’un monastère servait à consolider une fortune, mais le plus souvent l’établissement se posait en rival des autres héritiers. Il disposait d’une arme redoutée, la maîtrise des prières pour le salut des défunts. Divers affaires permettent de voir les différents cas de figure qui ont pu survenir, mais la majeure partie sont des contestations portant sur des biens dotaux ac- cordés aux monastères en l’absence d’héritiers directs. Ces quelques exemples montrent la justesse de l’idée d’A. Laiou selon laquelle les familles essayaient de limiter les divisions des patrimoines familiaux et de les reconstituer après deux générations. Les luttes les plus ar- dentes opposaient souvent des cousins germains. Les jugements de Dèmètrios Chômatianos constituent la source principale sur les querelles d’héritage, suivi des décisions du tribunal patriarcal au siècle suivant.
Byzantine families were obsessed with preserving their inheritance, especially when they owned properties and belonged to the aristocracy. The entrance of an heir into a mon- astery disturbed the beautiful ordering of property distribution among heirs. Sometimes, the foundation of a monastery helped consolidate a fortune, but more often, the monastery became a rival of the other heirs. It had a really feared weapon: it controlled prayers for the salvation of the dead. Various cases give an insight into the many different scenarios that could occur, but, for the most part, the most common situation was a dispute over the dowry granted to monasteries in the absence of direct heirs. These few examples support idea of A. Laiou’s idea that families tried first to limit the partition of their patrimony and then tried to reassemble it after two generations. The most ardent struggles often opposed cousins. The main sources on quarrels about inheritance are Demetrius Chômatianos judgments, followed by patriarchal court decisions in the next century.
16:00 - 16:30 Olivier Delouis (Paris) “Distraire l’héritage : monastères et héritiers à Byzance”
Si, pour une institution chrétienne, un don reçu de façon spontanée ou par voie tes- tamentaire est un cadeau de Dieu, et si, pour un donateur, ce même don doit permettre la rémission de ses fautes et son salut par la prière perpétuelle pour son âme, en revanche, pour la famille du donateur, la situation est toute différente. La donation peut s’apparenter en effet à une distraction d’héritage, à savoir à une séparation, à un retranchement d’une partie ou de la totalité d’un bien normalement attendu par les héritiers légitimes. Parce que dans les sources byzantines, les monastères – qui nous intéresseront ici – ont plus souvent la parole que les héritiers, nous connaissons assez mal les conflits familiaux entraînés par de telles donations pieuses. Cependant, les actes de la pratique, les typika ou règles de fondations mo- nastiques, ainsi que les actes des tribunaux, permettent d’évaluer les difficultés entraînées par une générosité trop personnelle. Nous présenterons quelques exemples concrets, puisés particulièrement dans les archives du Mont Athos, pour le Moyen Âge central et tardif, et nous tenterons de voir quelles parades ont été trouvées par les donateurs pour contrer leur plus grande menace : leur propre famille.
If, for a Christian institution, a gift received spontaneously or by will is a gift from God, and if for a donor, that same gift is meant to allow the forgiveness of his sins and bring his salvation through perpetual prayer for his soul, for the donor’s family, in contrast, the situation is quite different. The donation may be similar in effect to a capture of inheri- tance, namely to a separation, a retrenchment of part or all of a property normally expected by the legitimate heirs. Because in the Byzantine sources, monasteries – which interest us here – voice more often their opinion than the heirs, we know little of the family conflicts caused by such pious donations. However, legal documents, typika or monastic foundations rules, as well as court’s decisions allow us to assess the difficulties caused by an individual’ s too personal generosity. We shall present some concrete examples drawn particularly from the archives of Mount Athos, during the middle and late byzantine periods, and we will see what parades were found by donors to address the greatest threat to their donation: their own families.
16:30 - 17:00 Thierry Ganchou (Paris) “L’héritage Goudélès à Gênes : deux siècles de conflit familial (ca. 1423-1639)”
Samedi 23 mars 2013
09:00 - 09:30 Gerhard Lubich (Bochum) “Incestuous Marriage, Family Murders and Civil Wars : Becoming an Heir in Merovingian Times”
Succession within the roman imperial family didn’t rely on biological fortuity alone: By including relatives by adoption, in-laws and more distant kin, succession was subject to long- term political planning. Medieval practice, in contrast, is usually thought of as focussing on the “blood-line”, i.e. an exclusively agnatic system of transfer from father to son(s), thus limit- ing the royal family to a predominantly biological entity, dominated by its male members.
This practice seems to have been taken to extremes by the Merovingians, the first long-last- ing medieval dynasty: entitled to succession and inheritance were not only legitimate sons, but all male offspring; neither the status of the relation between king an mother (marriage / con- cubinage) nor her social status played a role. By focussing on the father-son succession alone, the Merovingian family represented a self-sufficient entity without genealogical ties to society. But as soon as the pater familias demised, this construction proved to be substantially frail and unfit to secure peace within the family. The remaining siblings fought each other; uncles killed nephews, fathers their sons, incestuous marriage occurred to secure inheritance. The resulting instabilities qualified as bella civilia, hence transposing a family affair to a “business of the state”.
The question pursued in this paper will not interpret these shortcomings as a result of a “failed” state, but focus on the underlying family model. At the transition to a post-roman society, the model of the nuclear family as promoted by Christianity was not yet established; parts of the Merovingians’ behaviour makes more sense if regarded as derived not from “fam- ily” but from the antique familia as the community surrounding the dominating pater familias.
09:30 - 10:00 Ellen Widder (Tübingen) “Schicksalsschlag oder Strukturproblem? Dynastische Brüche und Herrschaftssukz- ession im Spätmittelalter”
A stroke of fate or a structural problem? Dynastic failures and succession of power in the late middle ages
The dominant ruling system in the late Middle Ages was the dynasty. This is taken to mean an aristocracy, based on kinship and appointing power to a family group, the rule of which was passed down from father to son or father to sons. This system was under the constant threat of extinction by the absence of or the premature loss of (male) heirs.
In previous research, the problem of looming or apparent dynastic failures, or the end of a reigning family, has been the object of our attention on several occasions; however the phenomenon and its implications have not yet been analysed comparatively.
One of the SFB projects, funded by the German Research Foundation, is dedicated to the exploration of this subject in the late Middle Ages and is under my supervision at the Univer- sity of Tubingen. In the conference contribution below various aspects of the phenomenon are discussed: how did the various members of a ruling family deal with the constant threat of the lack of an heir, did they even really see it in this light, how was it interpreted and how did they approach the problem? How did they deal with infertility and were there alternative ways to secure the continuation of a reign? The legal dimension of the issue is certainly still the most familiar aspect (adoption, arrogation, inheritance contracts), but levels of interpretation and approaches to the problem could also be based on religious or familial grounds. It is on these grounds that Rene’ Anjou’s enlightening report lays its foundations.
In this paper various examples of aspects of this subject will be discussed, both in their fundamental principles and from a European perspective. In the process, the phenomenon of dynastic failure will be considered value-neutral, and will be looked at from multiple perspec- tives rather than being interpreted as simply the driving force of constitutional developments.
10:00 - 10:30 Cameron Sutt (Austin Peay State University) “Patrimony, Estates and the Kindred. Dividing the Goods in Árpád-era Hungary”
According to the earliest legal sources for the kingdom of Hungary (11th and early 12th century), inheritance rules focused upon the status of the land in question with the prima- ry distinction being that between land acquired through royal donation and that obtained through purchase. In the sixteenth-century Tripartitum opus iuris consuetudinarii by Stephen Werbcy, we see a much more developed system but one still dominated by the status of the land. Land could be classified as either ancestral land of the kindred, or that obtained by royal donation. Land considered part of the ancient kindred was subject to numerous re- strictions, all of which were designed to maintain the integrity of the ancestral lands while land held through royal donation could be disposed of freely with the provision that land returned to the crown in the event of the lack of a direct heir. In contrast, kindred lands passed to collateral relatives, including cousins. In the charter evidence of the thirteenth and fourteenth centuries, we see some of these principles at work while others are notably absent. Unsurprisingly, there appears to be a much more flexible approach to the inheritance rules than the legal prescriptions would imply, and families employed various strategies to maintain the integrity of their holdings and to maintain the peace among family members.
11:00 - 11:30 Yves Sassier (Paris) “Un conflit entre héritières devant la justice royale au cœur du XIIIe siècle : la dislocation du grand comté de Nevers-Auxerre-Tonnerre”
Session 7 : Islam [présidence : Jean-Claude Cheynet]
11:30 - 12:00 Frédéric Bauden (Liège) “Biens de mainmorte familiaux ou comment éviter la division de la propriété à l’époque mamelouke”
Les règles juridiques relatives à l’héritage en Islam sont fixées très précisément en ver- tu des préceptes édictés dans le Coran. Très tôt, la possibilité d’instituer une partie de l’hé- ritage en fondation charitable (waqf) est apparue sur base de traditions prophétiques. Fixée selon des normes bien définies, ce type de fondation a connu une évolution qui a conduit à des dérives à certaines époques. L’une d’entre elles concerne la fondation charitable instituée au profit des héritiers du fondateur (waqf ahl/dhurr ou waqf familial) ou du fondateur lui- même (waqf ‘al l-nafs). À l’époque mamlouke, ces deux types de fondation connurent un succès sans égal auprès de l’élite militaire. L’une des raisons, sinon la raison première, qui se cache derrière cet engouement pour cette forme d’héritage est qu’elle permettait d’éviter la dispersion du patrimoine entre les nombreux descendants d’une personne tout en ga- rantissant à ces derniers un revenu. En outre, les règles de l’héritage pouvaient aussi être contournées de manière subtile, ce qui n’était pas sans susciter des jalousies au sein des hé- ritiers. Critiquée par certains juristes, cette forme d’héritage a néanmoins servi les intérêts économiques et sociaux d’une partie de l’élite pendant plusieurs siècles. Notre propos sera d’analyser, pour l’époque considérée, les circonstances qui ont conduit au développement ex- traordinaire de ces fondations, les modalités d’accompagnement pour accomplir les volontés du fondateur et les conflits qui pouvaient surgir parmi les héritiers.
The legal rules of inheritance in Islam are set very precisely by precepts laid down in the Koran. Very early on, the possibility of establishing a part of the legacy as a charitable foundation (waqf) emerged based on prophetic traditions. Determined according to well-de- fined standards, this type of foundation underwent an evolution, leading to abuses at certain periods of time. One type of abuse concerns the charitable foundation established in favor of the founder’s heirs (Waqf Ahli / dhurr or family waqf) or in favor of the founder himself (waqf ‘ala l-nafs). During the Mamluk period, these two types of foundation experienced unparalleled success with the military elite. One of the reasons, if not the main reason, be- hind this enthusiasm for this form of inheritance is that it made it possible to avoid the dis- persion of wealth among the many descendants of a person, while guaranteeing them a in- come. Moreover, the rules of inheritance could be circumvented in a subtle way, though not without arousing jealousy among heirs. Criticized by some lawyers, this form of inheritance has nevertheless served the economic and social interests of a part of the elite for centuries. Our purpose is to analyse the circumstances that led to the extraordinary development of these foundations during the Mamlouk period, the ways of honoring the founder’s wishes and the conflicts that might arise among the heirs.
12:00 - 12:30 Lahcen Daaif (Paris) “L’égalité entre hommes et femmes dans les actes de waqfs mamelouks. Un défi à la loi ?”
Sur environ 3000 documents légaux que renferme la base de données CALD (Com- paring Arabic Legal documents) établie dans le cadre du projet européen ILM (Islamic law materialized) plus de la moitié sont d’époque mamelouke et les waqfiyyt en constituent une partie non négligeable. Parmi les nombreuses clauses dont font état ces waqfiyyt, l’égalité entre les hommes et les femmes est l’une des plus courantes et frappantes à la fois. Dans ces waqfiyyt, le wqif, le musulman fondateur du waqf –que celui-ci soit une fondation pieuse (ayr) ou un bien de mainmorte familial (ahl)– insiste souvent sur le partage égal des reve- nus du waqf entre les bénéficiaires parmi ses héritiers comme parmi les pauvres et les néces- siteux, sans discrimination des femmes. Rares sont en effet les waqfiyyt qui observent la loi coranique de l’héritage selon laquelle la femme a droit à la moitié de ce qui revient à l’homme.
Tout en le confrontant aux règles du droit successoral, on abordera ce thème en s’inter- rogeant sur la nature des raisons pour lesquelles ces fondateurs du waqf ont opté pour l’égalité entre les deux sexes. Y aurait-il une explication d’ordre purement juridique qui aurait favorisé cette tendance, spécialement à l’époque mamelouke ? Dans la mesure où les awqf (plur. waqf) ont connu un essor fulgurant sous les Mamelouks, peut-on rattacher cette insistance sur l’éga- lité à une politique juridico-religieuse qui aurait été encouragée par les autorités de l’époque ?
About 3000 legal documents are contained in the database CALD (Comparing Arabic Legal Documents) established thanks to the European project ILM (materialized Islamic law), more than half of these documents date to the Mamluk period and, among them, the waqfiyyt constitute a significant part. Among the many clauses included in such waqfiyyt, equality between men and women is one of the most common and it is striking at the same time. In these waqfiyyt, the Waqif, founder of the Muslim waqf- whether a pious founda- tion (Hayri) or a family property in mortmain (Ahly) – often insists on the equal sharing of income among the beneficiaries of the waqf among his heirs as among the poor and needy, without discriminating women. Few indeed are the waqfiyyt, which observe the Islamic law of inheritance according to which a woman is entitled to half of what is given to a man.
While confronting this fact with the rules of inheritance, we shall address the question of why these waqf founders opted for equality between the sexes. Is there a purely legal ex- planation which would account for this trend, especially during the Mamluk period? Insofar as the Awqaf (plural waqf) have skyrocketed under the Mamluks, can we relate this insis- tence on juridico-religious equality to a policy encouraged by the authorities of the time?
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