The Roman Law of Family Relationships- Paterfamilias [No. 86]

The distinctive Roman institution which did not survive, which applied only to private transactions, not to political life, was the arrangement in which the power was vested in the pater familius. And pater is Latin for father, and familius is Latin for family, and it was never a matrilineal system, it was a patrilineal system. And the basic rule of this particular system is that all rights and duties for the family were vested in the person who sat at the head of it. And this person, much like a mini-emperor, would in fact distribute the rights and duties within the family, subject to his own discretion. There may well have been an abuse or neglect contingency built into this system, but that's not what's typically stressed. And so what goes on is if you're an old and doddering father and you have two sons and one daughter, they're all underneath your power, which means that none of them can enter into contracts with third parties by themselves, but have to have your blessing in one form or another, which could create all sorts of awkwardness, and tended to develop in kind of general agency rules so that they could transact in the market with the large, sometimes implicit blessing of the father. And this would go to the grandchildren and all the way down, so you had this one person. Now, when that one person dies, it turns out, let's say he had two sons, then each of them would become the head of his own family, subject to everybody else's subordination. Sometimes when the two were in the care of their father, they entered into a joint venture, and the Romans had this institution of partnership, which had this strange Latin term, ercto non cito, which meant, in effect, that you would treat them as though they were partners so they could continue their relationship without the guy at the top. And since when the father was there, each of them had to take into account the abilities of the others and the needs of the others on an equal level of its own, these relationships became known as bona fide relationships. And what this meant was that when you're making a decision on behalf of the group, you have to weight the utility and the inconvenience to the other party equal to that of your particular self. And if everybody follows that principle, which they're likely to do since partnerships are chosen on the nature of trust, then you're going to get a higher level of performance than you would if each party feels free to defect and to benefit himself while harming the others. When we talk about partnership, we can see the way in which these rules are put into effect.