The Jurisprudence of the Forced Share in the Ancient World: From Cicero to Justinian?
Norwegian Academy of Sciences, “Donations: Strategies and Relations in the Latin West/Nordic Countries From the Late Roman Period Until Today” (Routledge, Ole-Albert Ronning, Helle Moller Sighe & Helle Vogt, eds., 2016 Forthcoming)
66 Pages Posted: 19 Jan 2016
Date Written: 2015
This paper is concerned with the origins of the European doctrine of the forced share, according to which parents must set aside at least a portion of their estate for their children. I begin this paper in Late Republican Rome with the adoption by the praetors of the cause of action for setting aside inofficious wills (the querela inofficiosi testamenti) and the enforcement of the Lex Falcidia, the statute establishing the forced share at one-quarter of the estate. I then consider the emergence of the vocabulary used to justify this mandatory estate practice, focusing in particular on the richly-textured noun pietas. I examine the social background of this practice, looking in particular at ancient concepts of marriage and family. I review Pliny the Younger's criticism of testators who neglected the interests of family members. And I close with the great legal reforms of the law of wills by the Emperors Theodosius II and Justinian.
Keywords: Roman Law, Law of Succession, Inheritance, Children, Marriage, Family, Familial Affection, forced share, inheritance, canon law, Catholic Church, medieval law, reciprocity, children, families, spouses, natural rights, natural law, Roman law, testamentary freedom, wills and trusts
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