04. Legal Documents in Ancient Societies VI. Ancient Guardianship: Legal Incapacities in the Ancient World
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CONTENTS / SOMMARIO
Cohen Nili
Modern Guardianship in Historical Perspective
Fijałkowska Lena
Custody of Children in Late Bronze Age Syria in the Light of Documents from Emar
Depauw Mark
Legal Incapacity in Ancient Egypt
Buraselis Kostas
Royal epitropeia. Remarks on Kingship and Guardianship in Macedonia and the Hellenistic Kingdoms
Mardirossian Aram
Išxanakan dayeak. Le tuteur princier dans l’Arménie ancienne
Kaye Noah
Guardianship and Regnal Politics. Discussion of the Papers of K. Buraselis and A. Mardirossian
Maffi Alberto
La tutela sugli orfani nella Grecia classica
Thür Gerhard
Guardianship in Athenian Law: New Evidence. (Dem. 27–29, Lys. 32, Hyperid. Against Timandros)
Cohen Edward E.
Kaltsas Demokritos
The False Guardian: An Interpretation of P.Eleph.Wagner 1
Du Plessis Paul J.
Once More on the Perpetual Guardianship of Women
Kruse Thomas
Governmental Control of Guardianship over Minors in Roman Egypt
Chevreau Emmanuelle
The Evolution of Roman Guardianship through the Mechanism of excusatio tutelae
Jakab Éva
Vormundschaft in lateinischen tabulae
Gagliardi Lorenzo
The Mother as Guardian of her Children in Rome and in the Oriental Provinces of the Empire
Radzyner Amihai
Guardianship for Orphans in Talmudic law
Faraguna Michele
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- PublicationCustody of Children in Late Bronze Age Syria in the Light of Documents from Emar(EUT Edizioni Università di Trieste, 2017)Fijałkowska, LenaEmar, a Syrian town situated on the bend of the Euphrates, thrived in the Late Bronze Age. Still, it was an era when life was frequently cut short by diseases, famine, and war, and men often died before their children could grow up. And yet, evidence for guardianship of such children is scarce. Minors are clearly mentioned in few documents, especially testaments, which do not give us much detail. Probably in a normal situation, the widow would take over the guardianship of her children or step-children, without any institutional intervention. Only in a problematic case (foreseen conflict, no wife able to fulfil guardian’s duties) the patriarch would settle the question in his will, with a lot of freedom concerning the person of the guardian as well as their rights and obligations. What was not mentioned would be subject to customary law. If the widow could not become guardian, this duty would fall to older siblings or paternal uncles of the child. The article aims at reconstructing the main characteristics of guardianship as mirrored in documents of legal practice.
367 308 - PublicationGovernmental Control of Guardianship over Minors in Roman Egypt(EUT Edizioni Università di Trieste, 2017)Kruse, ThomasThe contribution deals with the mechanisms of governmental control of guardianships over minors in Roman Egypt as it was exercised through the responsible administrative officials at the various levels of the administration. The relevant measures of this administrative control extended over the appointment of guardians for which applications had to be filed with the administrative authorities. These applications, which aimed at an official registration as guardian, may also reflect in some respect an indigenous legal tradition, though it is doubtful if such applications were obligatory. Another important measure of control of guardians was the obligation of the latter to render account of his management of affairs. The article also examines the role of the officials responsible for the appointment and control of guardians, i.e. the prefect of Egypt, the nome strategos and, at the municipal level, the exegetes and others.
414 573 - PublicationGuardianship and Regnal Politics. Discussion of the Papers of K. Buraselis and A. Mardirossian(EUT Edizioni Università di Trieste, 2017)Kaye, NoahCompared here are two distinct cases of dynastic guardianship, from Argead and Hellenistic Macedonia and from ancient and early medieval Armenia. The Armenian institution of dayekutʿiwn nurtured the foundling princes of extinguished clans, effectively reproducing an equilibrium of power between kings and nobles. The Macedonian practice of appointing a royal epitropos structured succession, taking on added significance after 200 B.C.E. Alternative Macedonian models of kingship also cast guardianship as a metaphor for non-charismatic monarchy.
397 300 - PublicationGuardianship for Orphans in Talmudic law(EUT Edizioni Università di Trieste, 2017)Radzyner, AmihaiThe article reviews the Talmudic institution of guardianship for orphans, as it appears in sources from Palestine and Babylon, mostly from the second to the fifth centuries CE. It is likely that the foundations of this institution are found in foreign law, but after it was absorbed in Jewish law, it began to build an independent life, and was not necessarily affected by its legal system of origin. The design of the institution was mainly conducted by the Jewish sages of the second-century (Tannaim). The Mishnah and Tosefta are already showing a fairly well-developed system of guardianship laws. This system was not changed substantially afterward, and the later Talmudic sages (Amoraim) continued to develop the institution upon the foundation created by their predecessors. The Talmudic sources present a fairly well-developed institution, from its creation through the duties of the guardian during his tenure to the end of the guardianship term.
328 357 - PublicationGuardianship in Ancient Societies: Concluding Remarks(EUT Edizioni Università di Trieste, 2017)Faraguna, Michele
330 356 - PublicationGuardianship in Athenian Law: New Evidence. (Dem. 27–29, Lys. 32, Hyperid. Against Timandros)(EUT Edizioni Università di Trieste, 2017)Thür, GerhardThe paper focuses on three guardianship cases from 4th century Athens: the well known one of young Demosthenes (or. 27–29), and those presented in Lysias or. 32 and in the recently published fragment of Hyperides’ speech Against Timandros held for a former ward Akadēmos. In all of them former guardians are called to account through dikē epitropēs. They are liable for “holding in their hands” (echein) the value of the wards’ assets. From Hyperides one gets new information about misthōsis oikou, leasing out the ward’s estate, whereby the guardian can avoid rendering account. In all three speeches the wards’ mothers are players in the background, and the speechwriters use the rhetorical technique of ‘isolating the facts’.
358 348 - Publication'Išxanakan dayeak'. Le tuteur princier dans l’Arménie ancienne(EUT Edizioni Università di Trieste, 2017)Mardirossian, AramInstitution très ancienne en Arménie, le tutorat (dayekutʿiwn) représente un instrument politique majeur qui connaît une triple évolution. Il apparaît à l’origine comme un moyen défensif forgé par les dynastes dans leur lutte contre la royauté afin de préserver leurs familles d’un anéantissement total en confiant leurs enfants à un tuteur appartenant à une autre clan. Le tutorat va par la suite acquérir une dimension plus offensive en permettant de renforcer la solidarité entre les familles princières grâce au mariage du pupille avec l’une des filles du tuteur. Paradoxalement, dans un troisième temps, le roi arsacide s’empare du tutorat pour essayer de saper les fondements juridiques et institutionnels du système dynastique. Cette tentative sera un échec, et seules les invasions turco-mongoles du bas Moyen-Âge finiront par détruire totalement les familles princières qui constituaient la colonne vertébrale de la société arménienne ancienne.
337 286 - PublicationLegal Documents in Ancient Societies VI. Ancient Guardianship: Legal Incapacities in the Ancient World(EUT Edizioni Università di Trieste, 2017)
;Yiftach, UriFaraguna, MicheleThe present volume discusses primarily the development and acculturation of guardianship in the period between the early first millennium BCE and the first millennium CE. Guardianship was conceived, as a legal institution, in the Greek world. As soon as Greek culture became predominant in the Mediterranean world, during the Hellenistic and Roman periods, it was taken over and absorbed into neighboring legal and cultural environments. Since the social and demographic circumstances that elicited guardianship are universal, the question has also been posed how the problems confronted by guardianship were dealt with in societies in which the institution itself was not available. Two contributions, examining this problem in the context of second millennium BCE Mesopotamia and Pharaonic Egypt, prompt a possible answer. An introductory contribution examines guardianship from the perspectives of modern Israeli law.807 11032 - PublicationLegal Incapacity in Ancient Egypt(EUT Edizioni Università di Trieste, 2017)Depauw, MarkThis paper studies the phenomenon of legal incapacity in Ancient Egypt throughout the ages, with special attention for the Graeco-Roman evidence in Demotic, the late stage of the indigenous language and script. Because the concept of guardianship is in many ways problematic for the Egyptian tradition, the paper looks at some areas of legal discrimination, and examines how differently women, the under-aged or the old were treated in the case of capitation taxes or the performance of legal acts, specifically inheritance. In all, the evidence points towards very minor discrimination of certain population categories: they were probably considered as constitutive members or membres-to-be of society. While they had most rights and could perform legal acts, as «weaker» individuals they were often assisted by others. As is typical for Egyptian law, much remains implicit. This is certainly annoying for legal historians, but may well be symptomatic of a strong sense of what was legally «proper».
486 409 - PublicationModern Guardianship in Historical Perspective(EUT Edizioni Università di Trieste, 2017)Cohen, NiliGuardianship, an old institute classified in law as pertaining to persons and family, functions within and outside the family. Family which is often regarded as a «natural» phenomenon, is a social construct, contingent on time, culture, class and place. The introduction puts emphasis on historical developments that on the one hand have limited the scope of ancient guardianship by bestowing legal independence or capacity to wider categories (e.g., women), and on the other hand expanded it to new categories within modern concepts of family (e.g., de facto adopted children). The modern concept of parenting which might be detached from coupling and biology is occasionally inter-related with de facto kinship. This trend could be traced back to old times, so that ancient guardianship might serve not only as a tool for comparison with current developments in law and society, but also as some source of insight and inspiration.
349 845 - PublicationOnce More on the Perpetual Guardianship of Women(EUT Edizioni Università di Trieste, 2017)Du Plessis, Paul J.The aim of this short piece is to investigate a statement by Gaius in his Institutes concerning the motivations for the perpetual guardianship of women in Roman law. Using a structuralist approach, the main argument put forward in this piece is that Gaius’ statement should be viewed within the context of larger social forces at work in Roman society.
414 900 - PublicationOvercoming Legal Incapacities at Athens. Juridical Adaptations Facilitating the Business Activity of Slaves(EUT Edizioni Università di Trieste, 2017)Cohen, Edward E.This chapter discusses (1) slavesʼ independent operation of businesses at Athens, (2) the use of representatives, «agents», to permit enslaved businessmen to accomplish through third parties undertakings that were otherwise impossible, and (3) in the context of the history of «agency» law, Athenian legal adaptations that largely resolved commercial difficulties arising from limitations on the legal capacity of unfree businessmen. The juridical acceptance of representatives – permitting businessmen lacking legal capacity to effectuate through third parties acts and practices that would otherwise have been legally impossible – constituted for Athens a remarkable innovation, responsive to the economic and social needs of fourth-century Attic enterprise. This Athenian adaptation should not, however, anachronistically be confused with legal mechanisms conceived hundreds of years later by Roman imperial practitioners and scholars, nor should it be juridically enmeshed with Anglo-American concepts of legal «agency» developed thousands of years later.
330 427 - Publication'Royal 'epitropeia'. Remarks on Kingship and Guardianship in Macedonia and the Hellenistic Kingdoms(EUT Edizioni Università di Trieste, 2017)Buraselis, KostasThe institution of the guardianship (epitropeia) of the infant or otherwise disabled king in Macedonia and the Hellenistic kingdoms has never been separately examined. Its description with the modern term «regency» only partly corresponds to its essence. Royal guardianship in those times presents, however, many interesting aspects pertaining to the persons exercising this function, their relation to the royal house or other social provenance, the way(s) of their selection, their own ambitions in this role and their eventual success in ascending the throne themselves. A careful study of some relevant cases may allow useful vistas into the whole problem, and, actually, the institution of Macedonian and Hellenistic kingship.
502 576 - PublicationThe Evolution of Roman Guardianship through the Mechanism of 'excusatio tutelae'(EUT Edizioni Università di Trieste, 2017)Chevreau, EmmanuelleDesigned as closely related to patria potestas, guardianship was formally understood as an aspect of potestas and a right exercised in the interest of the protected person until she or he reached puberty. Starting from the Principate, the initial approach to guardianship and to the role of the guardian starts to change. Guardianship potestas tended to shift into a guardianship similar to a charge (munus). Imperial policy then tended to harmonize the three types of guardianship following the model of the guardianship by magisterial appointment, in other words the idea was to coerce the guardian and in particular the testamentary guardian into making difficult for him to avoid the burden, accepting it and managing it efficiently. The purpose of this paper is not to analyse Marcus Aurelius’ generalisation (followed through by successive emperors) of the system of excuses, extended it to all types of guardianship, and forcing guardians to accept the office. This contribution rather focuses on the search for the correct balance between the wards’ interests and the guardians’ capacity to carry out his mandate effectively and efficiently. This is what we can deduct from a study of the rich casuistic dealing with the excuse grounds and from the shift of guardianship towards the category of civilian charges.
441 1378 - PublicationThe False Guardian: An Interpretation of P.Eleph.Wagner 1(EUT Edizioni Università di Trieste, 2017)Kaltsas, DemokritosThe paper examines a third-century BCE papyrus recording the conviction of a man who had somehow usurped the guardianship of a woman. A new interpretation is offered for a key phrase in the text; this leads to a modified view both of the case under consideration (possibly that of a marriage contracted without the consent of the bride’s proper guardian, her father) and of an otherwise unknown regulation invoked by the judges in their ruling (possibly to be seen as an attempt by the Ptolemies to combat undesirable innovations in marriage customs).
369 371 - PublicationThe Mother as Guardian of her Children in Rome and in the Oriental Provinces of the Empire(EUT Edizioni Università di Trieste, 2017)Gagliardi, LorenzoThe author argues that the mother as guardian of her prepubescent children in Roman law existed since the second century CE and not since 390 CE, as maintained by most modern scholars. Moreover, both in Rome and in some Oriental provinces of the Roman Empire (there is evidence from Egypt and Arabia), in the classical period of Roman law the mother could act as administrator aiding the appointed guardian. In the Greek speaking provinces of the empire, the latter was called epakolouthetria. The author denies that the mother as administrator aiding the guardian in Rome and the provincial epakolouthetria are generically interrelated.
418 599 - PublicationLa tutela sugli orfani nella Grecia classica(EUT Edizioni Università di Trieste, 2017)Maffi, AlbertoThis paper outlines the main features of the guardianship on male and female orphans in fourth century BCE Athenian law, as they can be found in the judicial speeches and in the Athenaion Politeia. They are set in comparison with relevant provisions of the Gortyn Law Code and with a law from Ephesos. In the Appendix are discussed some new aspects of the discipline of guardianship which result from a fragment, recently found and published, of the judicial speech of Hyperides against Timandros.
364 871 - PublicationVormundschaft in lateinischen 'tabulae'(EUT Edizioni Università di Trieste, 2017)Jakab, ÉvaTutela, Vormundschaft war eine wichtige Rechtsinstitution im römischen Recht. Moderne Autoren gliedern das Gebiet in tutela impuberum und tutela mulieris – Vormundschaft der Minderjährigen und der Frauen. Dem Vormund wurde „Macht und Gewalt“ zugesichert, um die Interessen des Unmündigen zu schützen: Ihre Hauptaufgabe bestand in der Verwaltung des Mündelvermögens. Der Beitrag konzentriert sich auf die dokumentarischen Quellen, die von der Praxis der tutela berichten. Tabulae bezeugen, wie die Vormünder bestellt oder abgelöst wurden. Andere Urkunden zeigen, dass die auf den ersten Blick streng anmutende Beschränkung der Rechtsfähigkeit der Frauen im alltäglichen Geschäftsleben wesentlich abgeschwächt werden konnte. Insbesondere vermögende Frauen, die die Mitwirkung von Sklaven und Freigelassenen zur Hilfe hatten, konnten ihre finanziellen Angelegenheiten sorglos ohne Vormund führen.
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