Cambridge Ancient Hi.. - Index of

402 14. the family in the late roman world
the legislator describes as ‘ignorant of civil affairs’. Families belonging to
this group were defined solely by cohabitation, and the legitimacy of children
depended on whether they lived under the same roof as their father. 35
It was social and economic classifications, therefore, that determined
whether families were constituted by a formal act and by recourse to a
written document or whether they came into being as a fait accompli, merely
by mutual consent and cohabitation. From this we deduce that most families
enjoyed a juridical existence only for as long as conditions of stability
remained.
Over the centuries the traditional Roman notion of consent retained an
important function. It appears strikingly in a famous document, the
Responsa ad consulta Bulgarorum, a letter written by pope Nicholas I in the year
866 in reply to certain queries raised by the tsar of Bulgaria. After going
through the iura nuptiarum, i.e. the various matrimonial duties and ceremonies
generally performed in Rome at the time, the pope specified that these
were not indispensable for establishing the legitimacy of the union. Bonds
contracted outside the iura nuptiarum (mainly for economic reasons) were
equally valid, and their validity was dependent solely on consent: per hoc
sufficiat secundum leges solus eorum consensus, de quorum coniunctionibus agitur. 36
Here, therefore, the concept of consensus, the traditional foundation of the
matrimonium iustum (i.e. the honourable union of respectable couples and
free citizens), had been transfigured by Christian morality to legitimate
above all the marriages of the underprivileged.
The history of the Roman family, it is often repeated, is inadequately
explained if we merely tell the story of imperial legislation. It is equally
poorly served, we might add, if we just narrate the history of the conciliar
canons and papal decretals. In reconstructing the ways in which the culture
of control manifested itself (in both the religious and secular spheres) historians
are particularly bound to the ritual observance of posing the following
question: to what extent did the laws actually influence general
behaviour? For the question to be at all meaningful, we must remember
that the law can also fulfil a function of concealment, which implies a
certain margin of failed application (to a greater or lesser extent, as the case
may be). As it is generally the law that follows social behaviour and values,
and not vice versa, the gap between the law and custom tends to increase,
slowly and gradually, until new laws are tailored to the new customs. 37
However, the law can also anticipate widespread social behaviour and
values. This occurs especially when the ideology of a minority influences
the decisions of government, even if only in certain fields. Late antique legislation
on the family is a case in point. The relationship between the law
35 Just. Nov. 74.4.1–3; see Patlagean, Pauvreté 116ff.
36 MGH, Epistolarum vi, Epistolae Karolini Aevi iv, Berlin 1902, no.99, 568ff., in particular §3; see,
more recently, Laiou (1985). 37 Saller (1991b) 29.
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