‘Pietas’ between Ancient Roman Family Morality and Law

 

 

LIN SHAN

Xiamen University

 

 

SUMMARY: Introduction. – I. What is pietas: the prelude to the legalization of family morality. – A. The origins of pietas: the interweaving of religious and secular elements. – B. The nature of pietas: as a principle of natural law. – C. The moral implications of pietas as reflected in literary works. – D. Cicero’s theorization of the concept of pietas. – II. How did pietas penetrate the law: the manifestation of the legalization of family morality. – A. The legal meaning of pietas. – B. As a source of legal rules. – a. The mutual obligation of support between parents and children. – b. Other obligations of parents towards their children.– c. Other obligations of children towards their parents. – d. Sources of other rules. – C. As a rationale for legal interpretation and adjudication. – a. Serves as a justification for violation of the law. – b. Serves as a sufficient reason for exceptions to the rules. – c. Serves as a standard for establishing legal facts. – D. As a legal rule itself. – a. Querela inofficiosi testamenti.– b. Revocation of the donation. – III. The Reception of pietas in modern civil law: the continuation to the legalization of family morality. – A. The French Civil Code.– B. The German Civil Code.– C. The Italian Civil Code. – IV. Conclusion. – Abstract.

 

 

– Introduction

 

The legalization of morality was a prominent feature of the development of ancient Roman society, particularly during the transition from the Republic to the Principate. During this period, numerous moral laws were enacted, covering areas such as political life[1], social public life[2], and the family[3]. In the area of family law, scholars focus on the lex Iulia et Papia Poppaea and the lex Iulia de adulteriis coercendis, enacted during the reign of Augustus, to explore the population and ethical significance of moral legislation, as well as its connection to the development of the empire[4]. However, specialized moral legislation is merely one form of the legalization of family morality[5], the more profound impact of the legalization of family morality was the incorporation and application of related moral concepts into the law.

Pietas is a moral concept that is difficult to define, as it involves relationships between an individual and their parents, relatives, the country, and the divine[6]. Pietas has been studied by numerous scholars from various disciplines, but research on the influence of pietas in the field of law is relatively less explored[7]. Pietas, as one of the traditional virtues of ancient Rome, not only shaped the moral outlook of citizen’s families but also profoundly influenced the development of European civil law through the codification of Justinian.

 

 

 

 

I. – What is pietas: the prelude to the legalization of family morality

 

A. – The origins of pietas: the interweaving of religious and secular elements

 

According to the authoritative German classical reference work Brill’s New Paul：Encyclopaedia of the Ancient World, the origins of pietas can be traced back to a time when a unified civitas did not yet exist, and individual families organized their lives under the protection and control of their ancestral deities (di parentes)[8]. Pietas originally referred to a person’s conscientious fulfilment of all the obligations required by his or her ancestor deities. These obligations are divided into two categories: worship of the ancestor deities; and respect and care for living family members[9]. The first category of obligations stems from the idea that, similar to ancient Greek society, the essential collective life of the family reinforced the awareness of natural solidarity, further strengthened by religious thought, which constituted the family spirit. According to this family religion, each generation is linked to their ancestors who protect them, forming a chain of continuity, with the individual being just one link in this family community[10]. The primary obligation of family members is to provide a permanent and inviolable place for the family spirit and to perform rituals and sacrifices for them[11]. The second category of obligations is an extension of the former and also a requirement in accordance with the natural order.

Thus, pietas is first and foremost a religious obligation, and impius means one who violates the obligation and is punished by the gods. The punishments were prescribed within the law of king (leges regiae). Festus mentioned two examples, one was stipulated in the law of Roman King Romulus and Tatius, “if a daughter-in-law had maltreated her parents-in-law, she was forfeited to the ancestral deities”[12]. The other was stipulated by the Servius Tullius, “If a son beats his father but the latter cries aloud the son shall be dedicated as a sacrifice to his ancestral deities”[13]. This punishment was called “sacratio” and the person punished was referred to as “homo sacer” meaning anyone could kill them without it being considered a crime. It can be seen that, although the early Roman pietas was an ancestral custom (mos maiorum) of a religious nature, its punishment was stipulated in secular law, and pietas was characterized by both religious and secular features.

 

 

B. – The nature of pietas: as a principle of natural law

 

Cicero stated that pietas is a natural law which is not born of opinion, but implanted in us by a kind of innate instinct[14]. This force is above the authority of the law, and when they come into conflict, people typically adhere to natural law, and the law sometimes yields to it. In the case recounted by Valerius Maximus, he considered pietas to parents as a natural law, the foremost principle of the natural order. Therefore, when a jailer found that the daughter of a woman sentenced to death was feeding her mother with her own breast to sustain her life during a prison visit, he reported this scene to the court. In the end, the woman was pardoned from her punishment[15]. The natural law nature of pietas has also been recognized by the jurists[16]. Among them, the most representative is D. 37.15.1.1 (Ulp. 1 opin.): Et inter collibertos matrem et filium pietatis ratio secundum naturam salva esse debet.

 

 

 

C. – The moral implications of pietas as reflected in literary works

 

The literary and historical works of ancient Rome are one of the important ways to understand traditional society. Among them, the works of Pliny the Elder and Valerius Maximus provide a relatively concentrated collection of examples that reflect pietas[17]. In literary works, pietas applies not only to relationships among relatives but also to the bonds between a patron and a freedman, and between an individual and the civitas. In terms of its content, pietas is often expressed as extreme love and devotion, even at the cost of one’s life: providing for one’s parents, obeying their commands, defending their honor, avenging the shame inflicted upon them, mourning the death of relatives, or suffering such deep emotional pain that it leads to death, and so on.

 

 

D. – Cicero’s theorization of the concept of pietas

 

Pietas is so deeply rooted in Cicero’s thought that it permeates almost all of his major works. We can observe the trajectory of how the meaning of pietas shifts with changes in political circumstances, social environments, and personal situations. We should not make a negative evaluation of Cicero’s views simply because his understanding of pietas differs across his various works[18]. As the ancient Greek philosopher Heraclitus said, “Everything flows”. Rather than accusing Cicero of inconsistency, it is more appropriate to view his understanding of the concept of pietas from a dynamic perspective. Therefore, this paper intends to trace the development of the idea of pietas in chronological order, based on the completion time of Cicero’s works.

Cicero provided a definition of pietas in De Inventione, written in 87 BC:

 

Cic., Inv. 2.66: pietatem quae erga patriam aut parentes aut alios sanguine coniunctos officium conservare moneat.

 

Pietas warns us to keep our obligations to our country or parents or other kin[19]. It can be seen that pietas is an obligation whose subjects are addressed to the country, parents, and relatives. Cicero then pointed out the connotations of this obligation.

 

Cic., Inv. 2.161: pietas, per quam sanguine coniunctis patriaeque benivolum officium et diligens tribuitur cultus.

 

Pietas is the feeling which renders kind offices and loving service to one’s kin and country[20].

In the period from the 80s to the early 50s BC, Cicero’s works primarily discussed pietas in the context of familial relationships. In Pro Quinctio, Cicero said friendship is maintained by truth, partnership by good faith, and kinship by pietas (veritate amicitia, fide societas, pietate propinquitas colitur)[21]. In Pro Roscio Amerino, Cicero cited the words of the sages, ‘pietas is often violated by a look (voltu saepe laeditur pietas)’[22]. Here, Cicero cited the words of the sages to illustrate a minor example in order to highlight a greater issue: even a disrespectful attitude towards one’s father (such as showing displeasure on one’s face) would result in a violation of pietas, let alone the act of patricide, which encompasses all forms of wrongdoing. In 57 BC, after the end of his exile caused by the Catiline affair, Cicero frequently mentioned the pietas duties that his brother Quintus fulfilled toward their father and himself—efforts that contributed to Cicero’s return[23]. In fact, from Cicero’s perspective, the pietas exhibited by Quintus is directed towards their father. The efforts Quintus made for Cicero’s return were in fulfilment of his pietas duties towards their father. In other words, the pietas towards the father extends to the pietas towards the brother—the former is the ‘source’, while the latter is the ‘flow’[24]. This idea, which reflects the extension of relationships between parents and children to other familial ties and even broader social relationships, is also evidenced in Cicero’s later ethical works[25].

However, after the late 50s BC, this focus on pietas duties primarily concerning familial relationships shifted, incorporating elements of the justice and divinity, which then became central to Cicero’s discussions.

Cicero explained the relationship between pietas and justice. He stated that nature is the foundation of justice, and therefore virtues like pietas, which have a natural quality, are also the foundation of justice[26]. When discussing the relationship with the divinity, Cicero believed that there is a close mutual relationship between humans and the gods[27]. This relationship is also manifested as a mutual obligation. Specifically, the gods are the rulers of all things, and therefore nature is the will of the gods, upon which human justice is founded[28]. In return, humans have a duty of pietas toward the gods. For example, One should approach the gods with pietas in purity, leaving behind wealth, otherwise one will face punishment[29]; to foster pietas towards the gods, one should live with divine[30]. If the pietas toward the gods were to disappear, it would lead to the loss of good faith, solidarity among people, and the finest of all virtues—justice[31]. This pietas toward the gods ensures the order of human society[32]. In Cicero’s view, pietas is the medium that connects humans with the gods and can even be seen as a path to heaven[33].

Thus, when Cicero shifted the focus of pietas from parents, relatives, and country to the divine and justice, he effectively completed a theoretical loop through these two elements. It can be observed that in Cicero’s philosophical system, humans achieve justice toward the gods through pietas (est enim pietas iustitia adversum deos)[34], and the gods, in turn, achieve justice toward humans through pietas[35]. The involvement of justice and the divine laid the groundwork for the legalization of pietas. We can see that in the classical Roman law, Ulpian stated that jurisprudence originates from justice (D. 1.1.1pr.), and jurisprudence is the knowledge of divine and human affairs, the science of what is just and unjust (I. 1.1.1).

There is still a gap to be crossed between virtue and law, as intellectual understanding alone is not enough[36]. Thus, Cicero put the existential significance of virtue into practice[37]. Virtues are defective and imperfect, unless they lead to some result in action[38]. He identified different virtues as sources of obligations, transforming principles of action/practice into obligations, and he distinguished between different levels of obligations[39].

In a word, Cicero not only defined the meaning of pietas, as the obligations toward parents, relatives, and the country, but also laid the theoretical foundation for the legalization of the concept by introducing the elements of the divine and justice. We will see traces of the influence of Cicero’s theory of pietas in Roman legal texts.

 

 

 

II. – How did pietas penetrate the law: the manifestation of the legalization of family morality

 

Based on a survey of Justinian’s codification, there are 44 references to pietas in the Digest, 35 in the Codex, and 3 in the Institutes. Additionally, there are several references to pietas in the Theodosian Code and Paul’s Sententiae. The concept of pietas in legal texts has a narrower scope compared to its use in literary works, primarily focusing on private law relationships.

 

 

A. – The legal meaning of pietas

 

Many scholars have tried to define the meaning of pietas based on legal texts. Hugo Krüger distinguished the subjective and objective aspects of pietas. In its subjective sense, pietas refers to one’s dutiful attitude and corresponding actions. In its objective sense, pietas refers to the relationship between two people, where one or both parties display this attitude and behaviour toward the other. Additionally, pietas also carries meanings of compassion, kindness, sympathy, and grace, which are not contingent upon any specific pietas relationship[40]. E. Renier pointed out the ancient Greek origins of pietas and its basis in duty[41], and pietas is manifested in a series of obligations among family members[42]. Richard P. Saller considered that the essence of pietas lies in mutual devotion among family members, encompassing both emotions and actions, and emphasizes that mutuality does not imply completely the same in every aspect[43]. Scholars have clarified the fundamental aspects of pietas from various perspectives. However, there is still room for further discussion.

The first question is: between which subjects of private law does pietas exist? Pietas as defined by Cicero existed among natural relatives, and modern scholars usually consider it to exist among family members. The former is narrower in scope, while the latter is open to ambiguity. According to Roman law texts, the scope appears to be somewhere in between, with pietas existing between relatives and including fictive kinship. The controversial aspect is that does pietas exist between a master and a slave? Slaves are not considered relatives, but they can be regarded as members of the household. The significance of this question is that, if so, it means pietas can exist not only within kinship relationships but also within artificially constructed familial relationships. This is very important to how to interpret why the new type of family relationships, such as civil union, should be protected under the family and succession law.

According to D. 29.5.2 (Callistratus 5 de cogn.) the edicts of the Emperors Marcus Aurelius and Commodus interpreted a will in which the testator, frightened by thieves, hid in a country house and was wounded, after which he made a will exempting (purgasse) the slave from his duties. The heir wanted to punish the slave, and the emperor refused the request, giving reasons for it: “nec pietas pro servis nec sollicitudo heredis optinere debet, ut ad poenam vocentur, quos absolvit dominus ipse”. For this text, S.P. Scott translated it as “neither his regard for them, nor the solicitude of the heir should allow punishment to be inflicted upon those whom the master himself has absolved”[44]. Alan Watson translated it as “neither a sense of duty in relation to slaves nor the anxiety of the heir ought to lead to those whom the master himself absolved being brought to punishment”[45]. S. Schipani translated it as “non deve prevalere né lo spirito misericordioso nei confronti dei servi né l’insistenza dell’erede che siano sottoposti a pena coloro che lo stesso padrone assolse”[46]. These three versions of the translation imply the master’s pietas towards his slave. However, the German translation of the Corpus Iuris Civilis published in 2012 took an opposite position. They translated it as “…can neither the duty of family members [towards the testator] with regard to the [punishment] of slaves nor the concern of the heirs [to miss the revenge] lead to the punishment of slaves whom the master himself has absolved”[47]. In this translation, the pietas is not of the master to the slave, but refers to the obligation of the family members to the testator, i.e., to punish the slave for failing to protect the master. They believed there is no reason to assume the existence of a special form of pietas directed towards slaves, and the confusion may arise from the fact that the preposition pro can also mean “in relation to”[48]. Therefore, “pietas pro servis” refers to the obligation of family members toward the testator regarding the punishment of slaves. Although this view is supported by some scholars[49], it remains open to debate.

Firstly, there are counterexamples to the linguistic misunderstanding proposed by scholars. D. 48.5.23(22).4 (Papinianus 1 de adult.) mentioned “pietas paterni pro liberis”, meaning pietas towards children. It is evident that the use of the preposition pro to indicate the object of pietas is not an isolated case. Secondly, Even though there is controversy regarding the text of Callistratus, this only reflects the situation during the classical law period. Justinian’s three decrees indicate the existence of an pietas relationship between master and slave[50]. For example, C. 7.7.1.6 (Imperator Justinianus to Julianus, 503) stipulated that if one or more of the joint-owners of a slave desire to liberate him, or release him at his own solicitation, the latter paying the price, or one or more of them say that they desire to free him and pay his value, he shall be preferred who first manifested this generous intention (rationem pietatis)[51]. Indeed, it is not difficult to see from the definitions of pietas in established studies that scholars have paid little attention to the fact that pietas implies different hierarchies and orders of precedence, which is precisely what Cicero’s ideas on the sources and flows of pietas, described earlier, extend from parental love of children to other relatives, and then to external relations. The differences in rights and obligations between different relatives need no elaboration. In other words, pietas is not a uniform scale, but rather manifests itself as “graded love”. When the existence of pietas between masters and slaves is viewed through the lens of “graded love”, the doubt can be better explained, that is, although slaves are not relatives, there is a relationship of pietas between them and their masters as members of their master’s family, only that this bond is weaker than that between other relatives such as parents and children. Thus, pietas can exist not only in kinship but also in family membership of an artificial nature.

The second question is that whether it is the attitude/behaviour or emotion/behaviour pointed out by scholars, this dual dimension of pietas corroborates Cicero’s concept of pietas in both the spiritual and practical aspects. However, the spiritual aspect of pietas as indicated by Krüger and Saller is not fully developed. Krüger cited cases concerning the dutiful attitude, primarily where the testator would typically invoke the pietas of the heir to urge him to execute the will[52]. For example, D. 32.37.3 (Scaevola 18 dig.) mentioned, “Confident of your pietas, I charge you to... (certus de tua pietate fidei tuae committo)”. Though Saller mentioned that pietas encompasses emotional aspects such as attitude, respect as well as love, what is lacking is that he mainly used literature as an argument[53]. Actually, It is precisely the emotional element inherent in pietas that creates a connection interdependence of personal interests between specific parties. This is manifested in the fact that one party’s improper behavior causes harm to the other party’s emotional interests, or any third party’s improper behavior towards one party leads to damage to the other party’s emotional interests. For the former, the querela inofficiosi testamenti serves as an example. The omission or unjustified disinheritance is regarded as an iniuria to close relatives. The non-transferability of the querela is precisely explained by its foundation in iniuria. For the latter, the obligation of the heir to avenge the testator serves as an example. Although Roman law only indicates that avenging the testator is a duty based on pietas[54], we can infer the rationale from the literary examples previously mentioned. The extreme love inherent in pietas causes one party’s injury or death to result in great emotional suffering for the other party.

 

 

 

B. – As a source of legal rules

 

The pietas that originates from parental love encompasses obligations centered around the parent-child relationship. These include the mutual obligation of support between parents and children (D. 25.3.5.15; D. 25.3.5.17; D. 25.3.5.2; C. 2.18.11; C. 5.25.4), the obligation of parents to provide guardianship (C. 2.18.1; C. 5.31.6; C. 5.31.9), establish dowries or marriage donation (D. 12.6.32.2; D. 37.6.6; D. 23.2.19; C. 5.11.7.2), the obligation of children to show respect to their parents (D. 37.15.1pr.; D. 37.15.1.3; D. 37.15.1.2), the order of intestate succession centered on blood relatives (C. 6.58.14.6), and the legitima portio in testamentary succession for close relatives, and so on.

 

a. – The mutual obligation of support between parents and children

According to Ulpian, parents and children should mutually support each other, even though the children are not being under paternal authority[55]. He then pointed out that this mutual obligation is derived from justice (aequitas) and from the attachment due to blood (caritas sanguinis)[56], that is “officium pietatis”. In this sense, aequitas and caritas sanguinis can be used interchangeably with officium pietatis. We can verify it through the following legal texts.

 

D. 25.3.5.15 (Ulpianus 2 de off. cons.): A milite quoque filio, qui in facultatibus sit, exhibendos parentes esse pietatis exigit ratio[57].

 

D. 25.3.5.17 (Ulpianus 2 de off. cons.): Item rescriptum est heredes filii ad ea praestanda, quae vivus filius ex officio pietatis suae dabit, invitos cogi non oportere, nisi in summam egestatem pater deductus est[58].

 

C. 2.18.11 (Imperator Alexander Severus. 227): Alimenta quidem, quae filiis tuis praestitisti, reddi tibi non iusta ratione postulas, cum id exigente materna pietate feceris[59].

 

C. 5.25.4 (Imperatores Severus, Antoninus. 197): Si patrem tuum officio debito promerueris, paternam pietatem tibi non denegabit. quod si sponte non fecerit, aditus competens iudex alimenta pro modo facultatium praestari tibi iubebit[60].

 

Pietas is the source of the support obligation between parents and children, and it is reciprocal in nature. However, this reciprocity does not imply absolute equality or symmetry. For example, the conditions under which parents and children fulfil their support obligations differ: if the child is capable of self-sufficiency or behaves improperly towards the parents, the parents may refuse to support the child[61]. Children’s obligation to support their parents depends on the children’s financial ability and the parents’ situation of poverty[62]. Therefore, the reciprocity of pietas does not specifically refer to the equality of certain rights and obligations, but rather to “the balance of rights and obligations based on the natural bonds that unite equal family members”[63]. In other kinship relationships, Emperor Antoninus Pius pointed out that a maternal grandfather also has a duty of support[64], but Marcellus believed that a grandfather and maternal grandfather have no obligation to support their grandchildren, unless the children’s father has passed away or is impoverished[65]. Ulpian adopted an equitable approach, stating that whether a descendant is obligated to support other relatives of the male and female sex should be determined by the judge based on the principle of pietas, balancing the needs of both parties. For example, the judge should interpose for the purpose of giving relief to the necessities of some and infirmities of others[66].

 

b. – Other obligations of parents towards their children

In early Roman law, the supreme authority of patria potestas (paternal power) rendered the pietas obligation between parents and children merely moral in nature, with little practical impact[67]. The paterfamilias held the power of life and death over his children. In this context, it would be illogical to compel him figure to fulfil the pietas obligation, such as supporting an individual over whom he held the power to kill[68]. Thus, in the early period, the pietas obligation was embedded within patria potestas. It was not until the late Republic, with the softening of patria potestas and the intervention of public authority[69], that the pietas obligation gradually gained influence in private law. For example, when a father killed his son for committing adultery with his stepmother while hunting, Emperor Hadrian (reigned 117-138 AD) exiled him, reasoning that patria potestas should be founded on pietas, not on brutality[70]. In this sense, pietas serves to mitigate the authority of patria potestas.

Based on the pietas obligation of parents towards their children, rules regarding guardianship, dowries, or marriage donation are established. In terms of guardianship, a mother appointing a guardian or curator for her children, or requesting someone else to do so, is considered to be fulfilling the pietas obligation. This can be confirmed by three imperial decrees from the classical law period.

 

C. 2.18.1 (Imperatores Severus, Antoninus. 196): Cum tutores filiorum tuorem suspectos faceres eisdemque tutores seu curatores peteres, munere pietatis fungebaris: quae causa non admittit negotiorum gestorum actionem ut sumptus, quos in ea lite fecisti, repetere possis, cum etiam, si quis pro adfectione eos petere potest[71].

 

C. 5.31.6 (Imperator Alexander Severus. 224): Matris pietas instruere te potest, quos tutores filio tuo petere debes, sed et observare, ne quid secus quam oportet in re filii pupilli agatur[72].

 

C. 5.31.9 (Imperatores Diocletianus, Maximianus. 293): Cum iure habenti tutorem tutor dari non possit, intellegis matrem non officium pietatis in petendo tutore deseruisse, sed iure munitam merito filio suo tutorem non postulare[73].

 

The appointment of guardianship in other kinship relationships is also based on the pietas obligation. For example, C. 5.43.6pr. (Imperator Gordianus) stipulated, “You are performing the duty required by affection when you attempt to protect the children of your brother, as blood relationship demands. Therefore, if their guardians or curators should not properly administer their affairs, and, having demanded that they be declared suspicious, you proved that this is the case, you can easily have others appointed in their stead”[74]. Ulpian also pointed out that the curatorship of an insane mother belongs to her son, for equal filial affection is due to both parents although their authority is not the same (D. 27.10.4)[75].

In terms of dowry, the paterfamilias’ obligation to provide a dowry for his daughter underwent a transition from a moral obligation to a legal one. The way pietas influenced the law also shifted, from being a source of legal rules to becoming a legal rule itself. In early Rome, providing a dowry was considered a moral obligation between a father and daughter or between relatives, based on pietas. During the Augustus period in the 1st century BC, there is an inscription known as Laudatio Turiae, a eulogy by a husband for his wife, which recounts how Turia and her sister provided dowries to family members in need. The inscription states: “Out of pietas, you not only demonstrated generosity to many people connected to the family but also to your own relatives”[76]. In Pliny’s Letters, there is also an account of how he provided a dowry to Calvina based on the obligation of kinship (affinitatis officio)[77]. Based on the moral obligation of pietas, legal rules regarding dowries and their return were established. For example, if a woman is convinced that she is obligated to provide a dowry, any property given as a dowry cannot be reclaimed. Similarly, if a woman dies during the marriage, and her grandfather passes away afterward, the dowry provided by the grandfather should be returned to the father. The legal texts are as follows:

 

D. 12.6.32.2 (Iulianus 10 dig.): Mulier si in ea opinione sit, ut credat se pro dote obligatam, quidquid dotis nomine dederit, non repetit: sublata enim falsa opinione relinquitur pietatis causa, ex qua solutum repeti non potest[78].

 

D. 37.6.6 (Celsus 10 dig.): Dotem, quam dedit avus paternus, an post mortem avi mortua in matrimonio filia patri reddi oporteat, quaeritur. occurrit aequitas rei, ut, quod pater meus propter me filiae meae nomine dedit, perinde sit atque ipse dederim: quippe officium avi circa neptem ex officio patris erga filium pendet et quia pater filiae, ideo avus propter filium nepti dotem dare debet[79].

 

In the late Classical period, providing a dowry appears to have become a mandatory obligation based on pietas. By the time of Justinian, it was clearly established as a legal obligation for a father to provide a dowry or marriage donations for his children. The legal texts are as follows:

 

D. 23.2.19 (Marcianus 16 Inst.): Capite trigesimo quinto legis Iuliae qui liberos quos habent in potestate iniuria prohibuerint ducere uxores vel nubere, vel qui dotem dare non volunt ex constitutione divorum Severi et Antonini, per proconsules praesidesque provinciarum coguntur in matrimonium collocare et dotare. prohibere autem videtur et qui condicionem non quaerit[80].

 

C. 5.11.7.2 (Imperator Justinianus. 531): Utramque igitur dubitationem certo fini tradentes sancimus, si quidem nihil addendum existimaverit, sed simpliciter dotem vel ante nuptias donationem dederit vel promiserit, ex sua liberalitate hoc fecisse intellegi, debito in sua figura remanente. neque enim leges incognitae sunt, quibus cautum est omnimodo paternum esse officium dotes vel ante nuptias donationes pro sua dare progenie[81].

 

c. – Other obligations of children towards their parents

Based on the pietas between parents and children, children have an obligation of respect (obsequium) toward their parents. D. 37.15 addresses “De obsequiis parentibus et patronis praestandis”, which include not behaving improperly toward parents[82], not using abusive language to insult one’s parents[83], not accusing them of being criminals[84], no actions involving moral turpitude or those based on bad faith or fraud shall be brought against them[85], and limiting the enforcement of judgments against parents to amounts they are able to pay[86]. Additionally, Fritz Schulz also considered the rule that parents cannot be summoned to court without the permission of a magistrate as part of the obligation of respect (obsequium)[87]. Violation of this obligation of respect would even constitute a breach of the public pietas and will be punished according to the severity of the offense. The legal texts as follows.

 

D. 37.15.1pr. (Ulpianus 1 opin.): Etiam militibus pietatis ratio in parentes constare debet: quare si filius miles in patrem aliqua commisit, pro modo delicti puniendus est[88].

 

D. 37.15.1.3 (Ulpianus 1 opin.): Indignus militia iudicandus est, qui patrem et matrem, a quibus se educatum dixerit, maleficos appellaverit[89].

 

D. 37.15.1.2 (Ulpianus 1 opin.): Si filius matrem aut patrem, quos venerari oportet, contumeliis adficit vel impias manus eis infert, praefectus urbis delictum ad publicam pietatem pertinens pro modo eius vindicat[90].

 

It is evident that through the obligation of respect, there is a potential overlap between the public and private aspects of pietas.

As previously mentioned, in early Roman law, the pietas obligation was embedded within patria potestas. When children violated their obligation of respect toward their parents, the paterfamilias could exercise patria potestas without resorting to public authority. By the late Republic, as patria potestas weakened in certain respects, pietas gradually gained legal force in private law. In the Classical Law period, when children violated their pietas obligation to their parents, the father could still exercise patria potestas to punish them. However, if more severe measures were desired, he would need to bring the children before the provincial governor, who would issue a judgment[91]. Ulpian also pointed out that a paterfamilias could not kill his son without a trial; he should bring charges against his son before a magistrate or governor[92]. Therefore, the pietas between parents and children means that such disputes should, in principle, be resolved within the family rather than in court. However, if the father believes the nature of the offense necessitates it, he can bring his son before the provincial governor, who will severely punish actions that violate pietas[93].

The pietas obligation of children toward their parents is also reflected in the allocation of the burden of proof in certain legal proceedings. According to D. 22.3.8 (Paulus 18 ad plaut.): “If a son under the control of his father denies the fact, the Pretor must direct the son to first prove his allegation, and this rule has been established on account of the affection which he ought to manifest for his father (pro pietate quam patri debet), and because the son practically alleges that he is free”[94]. In addition to the obligation of respect, the pietas obligation of children toward their parents also includes not acting against their parents’ wishes. Emperor Gordian II issued a decree, which stated as follows: “You should not, against the wishes of your mother, bestow freedom upon a slave whom she forbade to be liberated, lest you may appear to have violated the rights of filial affection (iura pietatis)”[95]. However, not all actions that go against a parent’s wishes are considered violations of pietas. A decree by Emperor Diocletian recorded a case where a daughter refused to follow her father’s arrangements regarding marriage, which was not deemed a violation of her duty of pietas toward her father[96].

 

d. – Sources of other rules

In matters of inheritance, both intestate succession and testamentary succession were influenced by pietas. During the period of the Twelve Tables, the order of intestate heirs was centred around patria potestas. As the importance of the Roman family as a political unit diminished, the rights of natural blood relatives gained increasing recognition. By the late Republic, in order to reconcile the imbalance between the rights of agnates (kin through the male line) and natural blood relatives, the praetors introduced the system of bonorum possessio to correct the shortcomings of ius civile. This adjustment arose from the relationship between pietas and the need to consolidate the authority of the emperor. In 2 BCE, Augustus was granted the title of Pater Patriae. What he invoked was not only people’s pietas toward the gods or traditional worship but also the adaptation of family customs and the universally significant means of family control into the political sphere[97]. This image of the emperor as the archetypal paterfamilias played an important role in emphasizing the values of kinship and pietas. However, by the time of the Claudius and Flavian dynasties, emperors deemed by ancient historians as “bad emperors” systematically violated this principle. For example, Domitian’s destruction of Roman society not only incited ruthless betrayal among family members but also subverted traditional morals and customs. New rulers needed to find legitimate reasons to strengthen central authority within widely accepted values, and these values also had to promote the reconstruction of social morality[98]. Therefore, during the era of the “Five Good Emperors”, pietas once again became an important theme in the empire’s propaganda[99]. Its influence in inheritance rules was reflected in the inclusion of the natural blood family. The senatusconsultum Tertullianum from Hadrian’s reign and the senatusconsultum Orphitianum from 178 CE granted intestate succession rights between mothers and children, with a certain priority. In 531 CE, Justinian issued a decree that, motivated by pietas, eliminated gender distinctions in intestate succession[100]. By the 543 CE Novel 118, a completely restructured intestate succession system, centred on blood relations and embodying gender equality, was established.

In testamentary succession, the influence of pietas on inheritance rules is evident in the interventions of Emperors Nerva and Hadrian regarding the one-twentieth inheritance tax, where they demonstrated a willingness to protect rights arising from natural family bonds[101]. The obligation for an heir to avenge the testator is also derived from the obligation of pietas. C. 6.35.1pr.(Imperatores Severus, Antoninus. 204) stipulated: “It is established that heirs who have neglected to avenge the death of a testator can be compelled to surrender all the property of the estate, for they who knowingly have failed to perform the duty demanded by affection cannot be considered to have been possessors in good faith before the controversy arose”[102]. Furthermore, as early as the late Republic, pietas became a focal point in the centumviral court’s handling of testamentary cases, influencing judicial decisions, eventually leading to the development of the querela inofficiosi testamenti. In fact, the origin and development of the querela inofficiosi testamenti reflect three ways in which pietas influences legal operations, especially as a legal rule itself, and thus will not be elaborated here.

In addition to being a source of legal rules, pietas can also serve as a reason for the invalidation of legal rules. For example, Papinian pointed out that the father, and not the husband, has the right to kill the woman and every adulterer; for the reason that, in general, paternal affection (pietas) is solicitous for the interests of the children, but the heat and impetuosity of the husband, who decides too quickly, should be restrained[103].

 

 

C. – As a rationale for legal interpretation and adjudication

 

In judicial activities, pietas sometimes serves as a justification for precluding unlawful actions, as a sufficient reason for exceptions to legal rules, and as a standard for determining legal facts. Its core value lies in harmonizing law with human sentiments to reach conclusions that align with fairness and justice, mitigating the harshness of the law, and promoting the strengthening of family bonds.

 

a. – Serves as a justification for violation of the law

In determining whether fraud has occurred, pietas can serve as a justification for precluding unlawfulness. Classical jurists have listed several instances where the recognition of fraud was precluded due to pietas. Firstly, a patron has the right to inherit the estate of a freedman. If the freedman transfers property to prevent it from falling into the hands of the patron, it constitutes fraud. Ulpian pointed out that if the freedman provides a dowry for his daughter, this would not be considered fraud against the patron, because a father’s pietas should not be condemned[104]. Secondly, to protect the right to freedom, the praetor’s edict stipulated that “you shall produce any person who is free, the possession of whom you fraudulently hold”[105]. Ulpian considered that if anyone retains his son, who is not under his control, he is usually considered to do so without being guilty of fraud; for genuine affection (pietas) causes his retention to be made, without the presumption of fraud, unless the existence of bad faith is evident[106]. Thirdly, Any testamentary heir is entitled to receive one-quarter of the inheritance according to the lex Falcidia. If the heir waives their one-quarter share under the lex Falcidia, it may harm the interests of their creditors, which constitutes fraud. Papinian considered that a father had not defrauded his creditors who, without waiting for his death, transferred the estate of his wife which had been left in trust to their son, after having released him from his control, without taking any account of the Falcidian portion; and he held that the father had fully executed his trust, and had perfectly discharged the duty (pietatem) required of him[107]. From this case, it can be seen that the father was the testamentary heir designated by his wife. The father’s act of waiving the lex Falcidia share harmed the interests of his creditors, but it was in accordance with his pietas toward his son. In the conflict between the two, Papinian prioritized protecting the latter, and pietas precluded the establishment of fraud.

 

b. – Serves as a sufficient reason for exceptions to the rules

In many cases, pietas serves as the reason for exceptions to the application of rules. In matters concerning the action for negotiorum gestio, if the action was motivated by pietas, the action for negotiorum gestio would not apply. Modestin provided an example: if Titius provided support to his sister’s daughter out of respect for fraternal ties (pietatis respectu), does not have the action of negotiorum gestio against her on that basis[108]. Roman law did not stipulate a legal obligation to support the children of siblings. However, if the support was provided based on pietas, a claim for negotiorum gestio could not be made. Similarly, Paul held that if a grandmother incurred expenses to support her grandson, this was done out of pietas, and the grandmother’s heirs could not bring an action of negotiorum gestio against the heirs of the grandson[109].

However, not all expenses paid out of pietas can exclude the action of negotiorum gestio. As case law developed, limitations on pietas as an exception to the rule were gradually refined. A decree by Emperors Severus and Antoninus stated: for when anyone has made disbursements for others through family attachment (pro adfectione), he cannot, under any circumstances, recover them[110]. Emperor Alexander Severus made adjustments to this, stating: “you have no good reason to ask that the expense of the maintenance which you have furnished your children shall be repaid to you, as by doing so, you have only discharged the obligation demanded by maternal affection (materna pietate). If, however, you have expended any money for the advantage, or probable benefit of their business, and can prove that your act was not prompted by your generosity as a mother, but with the intention of being reimbursed for what you paid, you can collect it by means of the action based on voluntary agency”[111]. Therefore, if a person voluntarily manages another’s affairs without any legal or contractual obligation, and it is either motivated by pietas or presumed to be so due to familial relationships, the action of negotiorum gestio is excluded—unless the person explicitly declares otherwise. This principle is particularly evident in the assumption of funeral expenses.

Ulpian pointed out that the person who pays the funeral expenses bears the burden of proving their motive.

 

D. 11.7.14.7 (Ulpianus 25 ad ed.): Sed interdum is, qui sumptum in funus fecit, sumptum non recipit, si pietatis gratia fecit, non hoc animo quasi recepturus sumptum quem fecit: et ita imperator noster rescripsit. igitur aestimandum erit arbitro et perpendendum, quo animo sumptus factus sit, utrum negotium quis vel defuncti vel heredis gerit vel ipsius humanitatis, an vero misericordiae vel pietati tribuens vel affectioni. potest tamen distingui et misericordiae modus, ut in hoc fuerit misericors vel pius qui funeravit, ut eum sepeliret, ne insepultus iaceret, non etiam ut suo sumptu fecerit: quod si iudici liqueat, non debet eum qui convenitur absolvere: quis enim sine pietatis intentione alienum cadaver funerat? oportebit igitur testari, quem quo animo funerat, ne postea patiatur quaestionem[112].

 

It is evident that Ulpian imposed limitations on the exclusion of negotiorum gestio due to pietas. He not only required a clear determination of whether the action was motivated by pietas, but also called for distinguishing the degree of such motivation.

In other case listed by Ulpian, the limitations on pietas as an exception to the rule were further validated.

 

D. 11.7.14.8 (Ulpianus 25 ad ed.): Plerique filii cum parentes suos funerant, vel alii qui heredes fieri possunt, licet ex hoc ipso neque pro herede gestio neque aditio praesumitur, tamen ne vel miscuisse se necessarii vel ceteri pro herede gessisse videantur. solent testari pietatis gratia facere se sepulturam. quod si supervacuo fuerit factum, ad illud se munire videntur, ne miscuisse se credantur, ad illud non, ut sumptum consequantur: quippe protestantur pietatis gratia id se facere. plenius igitur eos testari oportet, ut et sumptum possint servare[113].

 

It is evident that, although a party may declare that the payment of funeral expenses was made out of pietas, their actual intent might be to avoid giving the impression that they are acting as an heir or accepting the inheritance, rather than a desire to recover the expenses. Therefore, even if the action is motivated by pietas, if a more detailed explanation is provided, the action of negotiorum gestio cannot be excluded. At the same time, Ulpian held that a party should be allowed to claim that the payment for the funeral was partially motivated by pietas and partially by the intention to seek reimbursement; for the latter, an action of negotiorum gestio may be brought.

Pietas as an exception to the rule is also reflected in the following aspects. Firstly, an exception to the limitations on women’s legal capacity: women, based on pietas, can bring an accusation to denounce a guardian as suspicious[114]. A mother, motivated by pietas, may appeal on behalf of her son’s case, and her opinion must be heard and allow her to defend her son[115]. Secondly, the exceptions to the senatusconsultum Macedonianum. The senatusconsultum Macedonianum prohibited lending money to a son under paternal control under the pretext of a consumption loan. A rescript by Emperor Alexander Severus stated: the authority of the senatusconsultum Macedonianum does not prevent a demand being made for money which was lent to a son under paternal control, for the purpose of prosecuting his studies, or in order to meet the necessary expenses of an embassy, which paternal affection (patris pietas) would not have refused him[116]. Thirdly, the exceptions to the calculation of inheritance share. When a emancipated person applies for intestate succession under praetorian law, collation of the inheritance is required. Ulpian pointed out that if it is proved that the father furnished his emancipated son, who was absent for the purpose of pursuing his studies, not as a loan but because he was induced to do so by paternal affection (pietas), justice does not permit anything to be included in the share of the property of the deceased which passed to the said son[117].

 

c. – Serves as a standard for establishing legal facts

Karl Larenz pointed out that the core of legal application lies in making the necessary judgments about the facts of the case, specifically whether the individual aspects of the case meet the various elements of the legal requirements[118], such as the interpretation of declarations of intent that produce legal effects. In some cases discussed by classical jurists, we can see that pietas serves as the standard for determining the factual elements.

Firstly, there was a case that a testator made the following provision in a codicil, which he confirmed by his will: “I bequeath to all my freedmen, including those whom I have manumitted during my lifetime, who are manumitted by this codicil, or whom I may hereafter manumit, and their wives, sons and daughters, except such as I have specifically bequeathed, to my wife by the terms of my will”. He afterwards charged his heirs as follows: “I desire my heirs to give to my wife, their co-heir, my lands in Umbria, Etruria, and Picenum, together with all their appurtenances, including the country or city slaves, and those who transact my business, with the exception of such as have been manumitted”. The question arose whether Eros and Stichus, his slaves who had transacted the business of the testator in Umbria and Picenum until the death of the latter, and who were the natural sons of Damas whom the testator had manumitted during his lifetime, should be delivered by the heirs to Damas, in compliance with the terms of the codicil, or whether they belonged to Seia, his wife, according to the terms of his letter[119]. Scaevola gave the answer that, under the codicil, they belonged to their natural father, in conformity with the dictates of natural affection (naturalem pietatis intuitu). In this case, Scaevola used pietas as the criterion for judgment, choosing to prioritize the protection of family interests over the beneficiary’s interests.

Secondly, in ancient Rome, dowries not only served the function of alleviating the financial burdens of marriage but, starting from the late Republic, also provided support for women after the divorce and facilitated remarriage. After a divorce, women could request the return of their dowry. Where a father promised a dowry, and agreed that it should not be claimed by him while he was living, nor, in any event, so long as the marriage continued to exist, the Divine Severus decreed that the agreement should be interpreted just as if it had contained the addition, “While he was living”[120]. Ulpian pointed out that for this is to be understood to have reference to paternal affection (paternae pietatis), and the wishes of the contracting parties.

Thirdly, a grandfather appointed his son and a grandson by another son his heirs, and requested his grandson if he should die before reaching his thirtieth year, to deliver his share of the estate to his uncle. The grandson died within the period above mentioned, leaving children. Papinian considered that on account of paternal affection, the condition of the trust failed of fulfilment, because it should be considered that less had been prescribed than had been intended[121]. Papinian also pointed out elsewhere that the conditions stated in a will should be interpreted according to the testator’s intent[122], which is assessed based on the standard of pietas. A decree by Emperors Severus and Antoninus also interpreted the intent in a mother’s will through the lens of pietas[123]. A mother died in childbirth and her will overlooked the newborn. The Emperors hold that the injustice of the unexpected event should be rectified by the conjecture of maternal affection (maternae pietatis), thereby preventing the will from being challenged for inofficious.

Fourthly, a testator bequeathed maintenance until the age of puberty, and someone desired to follow the former custom with reference to boys and girls. Hadrian decided that boys shall be supported until their eighteenth year, and girls until their fourteenth. Ulpian hold that this rule promulgated by Hadrian must be observed. But although the age of puberty is not ordinarily fixed in this way, still, it is not illegal for it to be so established in the individual instance of the matter of support, where natural affection is involved[124]. In this case, the party wished to determine the bequeathed maintenance based on the puberty age established in the early Principate, which was 14 for boys and 12 for girls. However, this only refers to the age of partial puberty, as the full puberty age was 18 for boys and 14 for girls[125]. Therefore, between the two possible interpretations of the intent, the one that aligns more closely with pietas, namely the full puberty age, is chosen.

 

 

D. – As a legal rule itself

 

As a source of legal rules and as a rationale for lawful judgment, pietas still belongs to the realm of moral concepts. It influences the creation and application of legal rules from the outside. However, when allows pietas to internally influence the operation of the law is its role as a legal concept. Pietas as a legal concept is manifested when the violation of pietas obligation can give rise to a specific legal action (i.e. querela inofficiosi testamenti) or when pietas becomes a constituent element of a legal rule (i.e. pietas serves as a condition for the revocation of a donation).

 

a. – Querela inofficiosi testamenti

Paul gave the definition of the inofficious will, “inofficiosum dicitur testamentum quod, frustra liberis exheredatis non ex officio pietatis videtur esse conscriptum”[126]. It means that “the children having been improperly disinherited, it does not appear to have been drawn up in accordance with the duty of parental affection”[127]. In the late Republic, one of the main duties of the centumviral court was to adjudicate inheritance disputes. Cicero, in his accusations against Verres, the governor of the province of Sicily, linked wills with the obligations of pietas, stating: “The laws, decrees, and the authority of all those consulted declare that the will made by Publius Annius cannot be considered improper, inofficious, or inhumane”[128]. During this period, pietas as the standard for determining whether a will fulfilled its obligations was still moral in nature. The prudentes persuaded judges through the reasonableness of their own opinions. As some scholars have pointed out, «If one observes the responses of the prudentes, they were still semi-official and strongly promoted the formation of customary law as part of ius civile under the unwritten law. Thus, the querela inofficiosi testamenti was established through customary law»[129]. Thus, due to the influence of the prudentes, the custom that required testators to leave at least part of their estate to close relatives was adopted. This custom, having been consistently practiced, became mandatory, and any actions that violated it would be prevented by the centumviral court[130]. In addition, there is no clear standard for determining whether a testator is in breach of a pietas obligation, and it is left to the centumviral court to decide on a case-by-case basis.

The transition from merely accusing a will of being inofficious to the establishment of the querela inofficiosi testamenti, with clearly defined elements and legal effects, marks the shift of pietas from a moral concept to a legal one. Julian (active in the early 2nd century) was the first to introduce the term “inofficioso” into legal texts[131], possibly influenced by Cicero[132]. Marcian (active in the late 2nd century) provided a relatively detailed description of the causes related to inofficious wills[133], the subjects of right and the characteristics of the querela inofficiosi testamenti[134], and the decision-making process of the centumviral court[135]. Although the rules regarding inofficious wills were known as early as the 1st century BCE, most scholars believe that they differ from the querela inofficiosi testamenti of the Classical period. During the reign of Emperor Trajan, a specific standard was already in place: if the heir received one-quarter of the intestate share, known as the legitima portio, they could not accuse the will of being inofficious[136]. Regarding cases where a will violated the obligation of pietas by justifiably disinheriting an heir, Justinian provided clear regulations in Novel 115, helping to reduce the negative impact of uncertainty caused by judicial discretion in earlier times.

 

b. – Revocation of the donation

In a donation relationship, if children exhibit behaviour toward their parents that does not align with the obligation of pietas, the parents may revoke the donation upon providing evidence. However, the scope of revocation differs between the father and the mother. According to CTh. 8.13.2 (Constantius et Constans a Philippum. 349), if a father had bestowed anything by title of donation upon his children and then had proved in court that said children were inofficious (impios), the entire donation should be revoked, lest the reward of filial devotion (pietatis praemium) should remain in the possession of those of criminal and disgraceful minds[137]. CTh. 8.13.1pr. (Constantius et Constans ad Philippum. 349) stipulated that women of only one marriage shall have the right to revoke their donations up to one half of the amount given. Theodosius II and Valentinian III extended this right of revocation to grandparents and great-grandparents. From their texts, “contra ipsam venire pietatem, et ex causis, quae legibus continentur, fuisse constabit ingratam”, it appears that, to some extent, a violation of pietas was equated with legally defined cases of ingratitude[138]. By the time of Justinian, the right of revocation in donation relationships between parents and children due to the violation of pietas was integrated into the right of revocation due to ingratitude, and this right was extended to all donation relationships[139].

 

 

 

III. – The Reception of pietas in modern civil law: the continuation to the legalization of family morality

 

In seeking the reception of pietas in modern civil law, the first issue encountered is the translation of pietas. Pietas influences legal operations in various ways, and its meaning is not always the same. Identifying a corresponding term for pietas in modern law is not an easy task, as “Its sheer comprehensiveness makes it vague”[140]. On the issue of translation, Cicero pointed out, “If the meaning of a Greek word cannot be accurately expressed with a single word, we should use several words to convey it. At the same time, I believe we are fully justified in using a Greek term when no suitable Latin equivalent can be found”[141]. Therefore, in the examination of modern law, we should look for traces of succession in legal concepts that have the same or similar meaning as pietas, without being bound to the consistency of the term.

The codification movements in 18th-century Europe are regarded as the beginning of modern civil law. In this process, Roman law, along with the common law as interpreted by medieval jurists, played a pivotal role. It was through the reception of Roman law that European civil law was shaped. This reception did not involve a direct translation of Roman law rules into the new codes, but rather a selective adoption, modification, and adaptation to new circumstances. Nevertheless, the influence of Roman law can still be inferred by comparing the solutions they provided to the same legal issues. As previously mentioned, pietas existed in Justinian’s codification through three forms, primarily applicable in the areas of family and inheritance law, as well as in cases like negotiorum gestio and the revocation of donations. This article focuses on the civil codes of France, Germany, and Italy for analysis.

 

 

A. – The French Civil Code

 

The Napoleonic Code, enacted in 1804, had two major legal sources: the customary law applied in the northern regions of France and the Roman law applied in the southern regions. In family law, Article 371 of the Napoleonic Code states that a child, at any age, owes honour and respect to his father and mother. This article is similar to the obligation of obsequium that children owe to their parents in Roman law, based on the concept of pietas. Its Roman law origins can be found in the explanatory memorandum submitted to the legislature. The memorandum states that children’s respect for their parents is a natural force, an obligation they owe to their parents, and an expression of filial piety honouring paternal piety[142]. Meanwhile, Article 371 is placed as the first article in Title IX, concerning parental authority, and is regarded as a guiding principle for adjudicating parent-child relationships. When the draft was submitted for discussion to the Council of State, Bigot de Préameneu pointed out that this article embodies the principles developed and established by other provisions, and in many cases, it will serve as a basis for judges’ decisions[143]. This view was endorsed by both the courts and the legislature, as they considered that, although this provision does not strictly include legislative regulations and is more akin to a moral rule, the social upheavals had nearly overturned all concepts of subordination and filial respect (révérence filiale). Therefore, it was deemed necessary to place it as the first article to serve as a constant reminder that respect and honour towards parents must be maintained under any circumstances. By placing it first, it can serve as a judicial basis, for instance, in disputes between children and parents. When children, in their lawsuits or defences, exceed the boundaries of proper respect, this provision allows the judge to correct their behaviour through admonishment or more severe punishment, depending on the nature of the offense[144]. This article remains in place in the current French Civil Code and has been supplemented by Article 371-5, which stipulate that a child may not be separated from its brothers and sisters, unless this is not possible or where his welfare dictates a different solution. If there is occasion, the judge shall rule on the relations between the brothers and sisters. Article 371-5 is similar to the provision in Roman law regarding the prohibition of selling slaves separately. According to Ulpian[145], it frequently happens that slaves who are sound are returned with others that are diseased, where they cannot be separated without being inconvenienced, or without doing violence to natural affection (pietatis rationem); thus, it is necessary to observe the same rule with reference to brothers, and to slaves united in marriage[146].

Article 203 of the Napoleonic Code establishes the obligation of parents to provide for the support and education of their children. Article 205 outlines the duty of children to support their parents and other direct ascendants who are in need, while Article 207 clarifies the reciprocal nature of this obligation. In terms of dowry, there was a significant difference between regions governed by customary law and those governed by written law. In regions governed by written law, where Roman law applied, a father’s obligation to provide a dowry for his daughter evolved from a moral obligation into a legal one. In contrast, no such obligation existed in customary law regions, forcing a choice between two entirely different legal systems. The draft of Article 204 of the Napoleonic Code stipulated that a child has no claim against his father and mother for a settlement in view of marriage or otherwise. The drafters made this decision based on the position that the law should interfere as little as possible with people’s customary practices. They also believed that cases of harsh treatment by a father were rare exceptions to the natural order[147]. The opposing viewpoint argued that while it may not be appropriate to indiscriminately force all fathers to provide a dowry for their children, it would be strange to impose a prohibitive rule that prevents them from fulfilling these obligations under any circumstances, and they contended that civil law should be drafted in a manner that does not exclude considerations of fairness[148]. The supporters argued that the Roman law's requirement for fathers to provide a dowry for their daughters was originally intended to mitigate the harshness of paternal authority. However, in a context where paternal power was weakening and moral customs were in decline, introducing this legal obligation could be dangerous[149]. Although the opposition cited Roman law provisions, this view did not dominate. Introducing the mandatory obligation to provide a dowry in regions governed by customary law would require a conceptual revolution. In regions governed by written law, fathers were already accustomed to this obligation, and the reform had less impact due to respect for the old law and adherence to natural feelings. Therefore, the obligation to provide a dowry shifted from a legal obligation back to a moral one.

In matters of inheritance law, Articles 913 to 916 of the Napoleonic Code establish the reserved portion for close relatives. Although the proportion of the French reserved portion does not follow the exact rules of Roman law, the foundational principle behind its creation aligns with the original intent of the Roman legitima portio. When participating in the drafting of this article, First Consul Napoleon said, “the closer we adhere to Roman law in determining the reserved portion, the less we will weaken the rights that nature bestows upon every paterfamilias”[150]. When establishing the reserved portion for direct descendants, the legislators aimed to balance the right of disposal with parental obligations in the most just manner[151], and this obligation stems from the natural emotion of filial pietas. When establishing the reserved portion for ascendants, the legislators also drew from Roman law, citing the legal text: “just as parents owe a reserved portion to their children, so too do children owe a reserved portion to their parents (Quemadmodum a patribus liberis, ita a liberis patribus deberi legitimam)”[152]. The Napoleonic Code abolished the reserved portion for siblings, reasoning that the portion reserved for ascendants and descendants was not only based on affection but also on a sacred obligation, to the extent that violating this obligation was almost a crime. This sense of duty and obligation differed from that toward collateral relatives, for whom the obligation was based solely on blood relations and friendship[153]. The legislators also pointed out that experience is the most reliable guide. Both Roman law and regions governed by written law did not recognize a reserved portion for collateral relatives. The brother who had been omitted or disinherited by a will could only challenge the will on one occasion: when a person of disreputable character was appointed as an heir. In such a case, brothers could make a claim, which was seen as merely a form of retaliation for the grievous insult that the family had suffered due to the testator’s decision[154].

In donation relationships, Roman law established pietas as one of the legal requirements for revoking donations, stipulating that if children violated their obligations of pietas, parents could revoke the donation upon providing proof. During Justinian’s time, the right of revocation for violating the obligation of pietas was integrated into the broader right of revocation due to ingratitude, and this right was extended to all donation relationships. The Napoleonic Code inherited this rule, with Articles 953 and 955 providing for the revocation of inter vivos donations due to the donee’s ingratitude and specifying the situations for ingratitude: where the donee has made an attempt against the life of the donor; where the donee has been guilty of cruelty, serious offences or grievous insults against the donor; or where the donee refuses maintenance to the donor.

 

 

B. – The German Civil Code

 

Although the reception of Roman law in the text of the German Civil Code is less evident than in the Napoleonic Code, it effectively advanced the historical development of Roman law by “venture beyond Roman law by means of Roman law”[155]. Therefore, we can still infer traces of pietas by comparing the similarities between the systems.

In the realm of family law, Windscheid argued that the relationship between parents and children stems from the same moral and ethical law (Sittengesetz). The law’s role is merely to give this moral essence a proper external expression, with its main characteristics being mutual love and the children’s respect and pietas toward their parents[156]. In the German Civil Code, the obligations of support, mutual assistance, and care between parents and children are largely similar to the obligations based on pietas in Roman law. Article 1624 stipulates that property provided by parents for their children’s marriage or establishment of a independent position in life is deemed to be a donation, to the extent appropriate to the circumstances. This provision is similar to the dowry return rule in classical law, which held that dowries were provided as a moral obligation based on pietas and could not be reclaimed. Article 1620 provides that expenses incurred by children for their parents’ household should, in case of doubt, be considered as having no intention to demand compensation. Article 534 states that donations to meet a moral duty or made from considerations of decency are not subject to a claim for return or to revocation. Article 685, paragraph 2, stipulates that in cases of negotiorum gestio, when parents or grandparents grant their descendants maintenance, or vice versa, then in case of doubt, it should be assumed that there is no intention to demand reimbursement from the receiver. These two provisions closely resemble the Roman law concept of pietas, where moral obligations based on pietas exclude the right to claim reimbursement for expenses.

In inheritance law, Articles 2303 to 2338 of the German Civil Code (BGB) establish the compulsory portion (Pflichtteil) system. While it differs from Roman law in terms of the nature of the compulsory portion and the range of eligible subjects, the values and fundamental principles it pursues remain unchanged, as they are based on the natural concept of pietas, which speaks to all nations. Although German civil law scholars sought to detach the unique aspects of Roman law, they developed it into a form of natural law[157]. Regarding the revocation of donation, Article 530 of the German Civil Code stipulates that a donation may be revoked if the donee is guilty of gross ingratitude by doing serious wrong to the donor or a close relative of the donor.

 

 

C. – The Italian Civil Code

 

Before the 19th century, common law (ius commune) was widely practiced in Italy. The Italian Civil Codes of 1865 and 1942 were heavily influenced by both French and German civil law[158], with similar provisions found in the systems discussed earlier. Thus, the necessity of studying Italian civil law lies not in the similarity of its systems, but in the transformation of the legal theory behind it. Although the concept of pietas is not explicitly used in the provisions of the French Civil Code or the German Civil Code, we can still find direct or indirect evidence of its influence in similar systems, as well as in the drafting materials or writings of the codifiers. However, in modern Italian legal doctrine, family solidarity (solidarietà familiare) has replaced pietas as the guiding principle in family law.

The principle of solidarity originates from the slogan “Liberté, Égalité, Fraternité” of the French Revolution. The term “Fraternité” was translated into German as “Solidarität” in the 18th century. Resultly, the concept of fraternity evolved into solidarity and gained widespread use across Europe. Even in France, where the concept of fraternity originated, the term solidarity later came to replace it[159]. The legal socialism (Socialismo giuridico) that emerged in the 19th century represents the application of the principle of solidarity in the legal and moral realms. Its philosophical foundation is the idea that the individual and society form an organic whole, with their development being simultaneous and inseparable. The existence and prosperity of the individual depend on the existence and prosperity of society. The highest psychological state is when the individual realizes that maintaining the social organism is their highest obligation and regards it as the purpose of their own existence[160]. Italian scholar Sergio Panunzio believed that solidarism is not an independent or coincidental trend, but one that has resurfaced throughout history, especially during times when social processes are turbulent and chaotic. In such moments, the ethical spirit becomes particularly intense[161]. He also cited the role of natural reason’s equity (Equità) in Roman law, which tempered the strict law and allowed Roman law to gradually adapt to the growing needs of social life. Therefore, in the context of increasing social division of labor and economic transformation, Italian scholars, represented by Panunzio, criticized the individualism of the 1865 Italian Civil Code[162], and sought to introduce the ethical principle of solidarity into civil law reforms, including property law, contract law, labor contract law, family law, and inheritance law[163].

Under the influence of the legal socialism movement, Article 29, Paragraph 2 of the 1947 Italian Constitution states that marriage should be based on the moral and legal equality of both spouses and should adhere to the legal restrictions that ensure family unity. The term “unità” in this article implies a stronger demand for solidarity, emphasizing the integrity and cohesion of the family[164]. Despite the different terminology for solidarity, Article 29 is still regarded by modern Italian scholars as the constitutional foundation for applying the principle of family solidarity in family and inheritance law. In Civil Law II: Family and Inheritance (2005), C. Massimo Bianca attributes the legal rules that originated from or were influenced by the concept of pietas to the requirement of family solidarity. For instance, in family law, Bianca argues that the close bonds within the nuclear family have evolved into rights and obligations of assistance, cooperation, and support[165]. Family solidarity should first be understood as mutual solidarity between spouses, who are morally and financially obligated to help each other. It should then be extended to the solidarity toward children, aimed at meeting the needs of minors, including support, education, teaching, and love, to foster their full moral and social development[166]. Additionally, Bianca applies the principle of family solidarity to new types of family relationships, such as civil unions. Even for unmarried cohabitants, case law emphasizes that when the cohabitation reflects the spirit and material coexistence of marriage, it must be presumed to be a relationship of gratuitous cooperation, reflecting family solidarity[167]. In inheritance law, intestate succession is based on the principle of family solidarity; in testamentary succession, a distinction is made between voluntary solidarity and mandatory solidarity, the latter being the forced heirship[168].

How did this shift from pietas to the principle of solidarity occur? On the one hand, solidarity and pietas share commonalities, as both are expressed through cooperative, altruistic and self-restraining behaviour within specific communities, with the ultimate aim of maintaining social order. On the other hand, during the period of Roman law, when pietas exerted its influence, family law was centered around patria potestas. In particular, under manus marriage, the wife was in the position of a daughter, and the primary marital property system was the dowry system. Therefore, the pietas that originated from the natural love between parents and children primarily influenced the rights and obligations between parents and children, with little impact on the marital relationship. With the spread of the ideas from the French Revolution and the emancipation and rise in the status of women, the rights and obligations between spouses became increasingly important. The concept of pietas had certain limitations, while the principle of solidarity could be applied more broadly. The principle of solidarity in family law as explained by Panunzio highlights, first and foremost, the solidarity between spouses, followed by the solidarity toward offspring[169]. More importantly, the authority of the principle of family solidarity was enshrined in Article 29 of the Italian Constitution, giving it a prominent status in modern law.

 

 

 

IV. – Conclusion

 

Whether it is pietas as an early ancestral custom, or pietas in Roman law, or the reception of pietas in modern civil law, the obligation basis has always been its constant color, and there is a process of alternation in the nature of moral or legal obligations. It was Cicero who first define the meaning of pietas and laid the theoretical foundation for the legalization of pietas. Pietas means the obligations toward parents, relatives, and the country. In the period from the 80s to the early 50s BC, Cicero’s works primarily discussed pietas in the context of familial relationships. However, after the late 50s BC, there was a shift in his discussion, introducing elements of divinity and justice, which became central to his argumentation. In Cicero’s view, nature is the basis of justice, and pietas, as a virtue that originates from nature is also the basis of justice. Under this premise, on one hand, pietas originates from nature, and people need to cultivate the virtue of pietas in order to approach the divine, as pietas represents justice towards the gods. On the other hand, nature itself is the result of divine will, and pietas, with its natural attributes, is one of the greatest gifts bestowed by the gods upon humanity. Therefore, through pietas, humans achieve justice toward the gods, and the gods, in turn, achieve justice toward humans through pietas. The involvement of justice and divinity serves as the theoretical foundation for the moral legalization of pietas. This concept is evidenced in jurist Celsus’s definition of jurisprudence: jurisprudence originates from justice (D. 1.1.1pr.). Jurisprudence is the knowledge of divine and human affairs, the science of what is just and unjust (I. 1.1.1).

In Roman law, pietas refers to the emotional bonds and obligations among family members. In terms of its subject, pietas, although it originates from the natural love between parent and child, can also exist in artificially created family relationships; in terms of content, the emotional bonds inherent in pietas that creates a connection interdependence of personal interests between specific parties. This is manifested in the fact that one party’s improper behaviour causes harm to the other party’s emotional interests, or any third party’s improper behaviour towards one party leads to damage to the other party’s emotional interests. The obligations are reciprocal rather than equivalent, adhering to the idea of “graded love” for distribution and balance.

Pietas achieves moral legalization through three progressive ways. Firstly, serve as a source of legal rules, including the mutual obligation of support between parents and children, the obligation of parents to provide guardianship, establish dowries or marriage donation, the obligation of children to show respect to their parents, the order of intestate succession centred on blood relatives, and the legitima portio in testamentary succession for close relatives, and so on. Secondly, serve as a rationale for legal interpretation and adjudication. In judicial activities, pietas sometimes serves as a justification for precluding unlawful actions, as a sufficient reason for exceptions to legal rules, and as a standard for determining legal facts. Its core value lies in harmonizing law with human sentiments to reach conclusions that align with fairness and justice, mitigating the harshness of the law, and promoting the strengthening of family bonds. Thirdly, serve as a legal rule itself, pietas as a legal concept is manifested when the violation of pietas obligation can give rise to a specific legal action (i.e. querela inofficiosi testamenti) or when pietas becomes a constituent element of a legal rule, i.e. pietas serves as a condition for the revocation of a donation.

The term pietas is no longer seen in modern law. Although the concept of pietas is not explicitly used in the provisions of the French Civil Code or the German Civil Code, we can still find direct or indirect evidence of its influence in similar institutions, as well as in the drafting materials or writings of the codifiers. The Italian Civil Code, though containing similar provisions, has been influenced by 19th-century legal socialism and Article 29, Paragraph 2 of the Italian Constitution. These influences have led to the principle of family solidarity replacing the concept of pietas as the guiding principle in family and inheritance law.

 

 

 

Abstract

 

Pietas, as one of the traditional virtues of ancient Rome, not only shaped the moral outlook of citizen’s families but also profoundly influenced the development of European law through the codification of Justinian. In the early days of ancient Rome, pietas existed in the form of ancestral customs, and it was Cicero who laid the theoretical foundation for the legalization of pietas. In Roman law, ‘pietas’ refers to the emotional bonds and obligations among family members. These emotional bonds link the personal interests of specific subjects, while the obligations are reciprocal rather than equivalent, adhering to the idea of ‘graded love’ for distribution and balance. Pietas achieves moral legalization through three progressive ways: as a source of legal rules, as a rationale for legal interpretation and adjudication, and as a legal rule itself. The term ‘pietas’ is no longer seen in modern law. Although the civil codes of France and Germany do not continue the concept of pietas, they have inherited the ways and substantial content influenced by pietas in their legal operations. The Italian Civil Code, however, has replaced the concept of pietas with the principle of family solidarity as the guiding principle in family law and inheritance law.

 

Keywords: pietas, moral legalization, family morals, principle of solidarity