On the Remarriage of Widows in Roman Legal Experience
In the archaic period violations of the prohibition relating to mourning was regarded as a nefas and hence subject to penalisation under religious law. A widow guilty of an infringement was required to make an expiatory sacrifice known as a piaculum, viz. a bovis feta. This religious and customary practice underwent a series of transformations and eventually became a law (ius). In the pre-classical period the prohibition on the remarriage of widows in the period of mourning was perceived primarily as subject to penalties laid down by civil law. This was due to the question of the paternity of any offspring such a widow might bear in the tempus lugendi. The edictum perpetuum names the persons who were liable to infamy if they committed a breach of the prohibition on the remarriage of a widow within the period of mourning for her deceased husband. Such persons could neither engage in postulare pro aliis or act as a procurator or cognitor. One of the consequences of a sentence of praetorian infamy was the convicted person’s forfeiture of the right to appoint his or her plenipotentiaries for legal proceedings. The classical period brought fundamental changes in the law on remarriage. Nonetheless, even though Augustus encouraged citizens to remarry, yet his legal provisions left widows a certain period of time following the loss of their husband in which they could refrain from remarrying. The reason behind this legal arrangement was not so much mourning as such; it was rather a question of Augustus wanting to show his respect for univirae (women who had been married only once). Augustus kept in force the provisions that gave a bad reputation to people who violated the prohibition of widows’ remarriage. The significance and effectiveness of these regulations made them a subject for jurists’ commentary, on account of the need to avoid situations where the paternity of children born to widows was uncertain. The prohibition on the remarriage of widows also shows that the creators of these regulations wanted marriage to be contracted primarily for the purpose of procreation.
Ph.D in Roman Law, MD. in Law, with honors, in University Federico II Naples, I am currently an Adjunct Professor (fixed Term) in Roman Law in University of Bologna, Dept. of Legal Studies and Adjunct Professor (fixed Term) of Middle Age Legal History in Dept. of Humanities and Modern Culture (Roma La Sapienza University). Qualified as a Barrister (“Avvocato”) and ADR Specialist since 2009.
Formerly Visiting Lecturer in Valladolid, Exeter, Salzburg, and Post Doc Researcher in Roman Law, Salerno University, Dept. of Legal Studies, I published many articles and essays on Roman Litigation System, two books on Limitation of Actions, and I am interested in the areas of Comparative Legal History, Private Law, Legal Theory, Middle Age Legal History, criminal law history.