考生姓名：黄文煌

准考证号： 103848111041043

考生单位：绍兴文理学院法学院

报考专业：民商法学 . 罗马法方向

指导教师：徐国栋

联系电话： 13676867172

电子邮箱： mailhwh ＠ 163.com

 

Project Statement

 

A Study of the Dowry in Roman law

By Huang Wenhuang

 

 

 

 

 

 

A Study of the Dowry in Roman law

By Huang Wenhuang

Background

I am a learner of civil law and Roman law, peculiarly interested in the private Roman law. When I was a graduate student of Xiamen University five years ago, I attended such curriculums as the history of Roman law and the private Roman law taught by Professor Xu Guodong, a famous scholar who specializes in Roman law. From then on I have great interest in learning Roman law. Especially, I form a particular way of understanding an institution of the private Roman law under its background and history and at the same time try to seek its modern form in civil law. The institutions of private Roman law can always inspire me to make intensive research. I have written an article (which was published in the Roman Law and Modern Law ) on res mancipi in the private Roman law.

The dowry ( dos ) in Roman law is an institution with a long history but it is still under dispute in modern civil code, so it fascinates me to make an intensive research on it.

Most societies, in their histories, have been characterized by payments at the time of marriage. These payments come in various forms. In ancient Rome , such marriage payments were mainly transferred from the family of the bride to that of the groom, broadly termed as “dowry”. In classical Roman law, the institution of dowry became a main type of property relations between spouses. Although dowry was then eclipsed for a time, it was widely reinstated in the late Middle Ages. In medieval Western Europe and later, dowries were common practice among most, if not all, social and economic groups, even were transferred in many parts of the Byzantine Empire (See Siwan Anderson, The Economics of Dowry and Brideprice , Journal of Economic Perspectives, 2007). In the era of civil codification, the institution of dowry was adopted by several modern civil codes of continental law system, such as the French Civil Code (1804), and the Chilean Civil Code (1855). But it was abolished in the French Civil Code in 1965, and the Italian Civil Code (1942) prescripts that any agreement on the dowry of marriage will be null and void. As a result, the institution of dowry nearly came to an end in modern civil law. However, we can still find the traces of dowry at some places in the world, and such institution even exists in Chilean Civil Code. In a sense, modern rules of property relations between spouses in continental law system of many countries were derived from the Roman system. Thus Sir Henry Maine states: “The law of the Continent on the property relations of husband and wife is in the main Roman law, very slightly transmuted; and through the institutions of the Roman law the history of this branch of law may be traced to the earliest institutions of so much of human race as has proved capable of civilization” (See Maine, Lectures on the Early History of Institutions, John Murray Ltd. London, 1875). So I plan to make archeology on the dowry in Roman law and try to find out its modern form in civil law, which I think will be a useful work.

In Roman law the institution of dowry held a very important role, which governed the mutual interests of husband and wife on the proprietary relations, such institution was generally regarded as a social custom in the early period and subsequently became a formal institution of law. Originally on a manus marriage (in such marriage the husband had legal power over his wife), the husband acquired the wife's property if she was sui iuris (of a person who was not under the power of another), because she was assumed to be her husband's daughter. If the wife was not sui iuris , then her paterfamilias (the male head of family or tribe) would be expected to provide a dowry, but the husband had no obligation to return any property that constituted dowry on the termination of the marriage. It was until late Republic when the praetors introduced actio rei uxoriae (the action for wife's property) to protect wife that the divorced wife could recover a fair share of the dowry after her husband made reasonable deductions, regardless her husband had promised to return it or not. Heretofore the property relations between spouses made a revolutionary change. To improve the condition of the wife, Augustus introduced many important reforms on dowry and Justinian especially enacted further improvements to the wife's position. Consequently these reforms not only helped to secure the financial protection for the wife on divorce but also gave more freedom to them. The special history of the Roman dowry always puzzles me and arouses my meditation. What was the real connection between manus and dowry? What was the nature of dowry in Roman law? Why did Roman emperors introduce so many rules to modify the institution of dowry? How did it develop in later times? All these trigger me to make an intensive research on it and I think it will be a very interesting and meaningful object.

What's more, the institution of dowry was a reflection of women's condition in ancient Rome , which is always a popular topic in the field of social science. Seventy years ago Mario Lauria written in Italian “La dote romana” ( I.T.E.A. Industrie ipografiche Editoriali Assimilate, Napoli, 1938 ). In the country of the common law system a Master of Letters named K. Kagan has written “The Nature of Dowry in Roman Law-Rights of Husband and Wife” (Tulane Law Review, Vol.20, 1946). The most recent (2007) work in the field of economy and sociology is Professor Siwan Anderson's thesis “The Economics of Dowry and Brideprice” (Journal of Economic Perspectives, 2007). In fact a study of the dowry will help to understand the conventional social behavior, the economic situation and women's emancipation in ancient Rome . For example, Augustus's reforms concerning the return of the dowry on termination of marriage attributed to the economic situation and social behavior during the transitional period of Rome from Republic to Principate, such reforms reflected the problem of wealth and culture, the ideas about marriage, the divorce rate, and female emancipation at that time. In this project I will simultaneously attempt to analyze the manifestation of emancipation of Roman women, find out the causes of such movement as well as evaluate women's rights in the law. It will be a research based on law, economics and sociology, and help us understand how these factors interact with each other.

 

Objective

In this research, I will make archeology on the dowry in Roman law to describe its evolution, compare its different functions in different times, especially I will put emphasis on its main functions in classical Roman law. I will also try to examine the problems of it in connection with other institutions in Roman law, such as the connection with societas omnium bonorum . If possible, I will carry out some surveys and investigations on women's liberation in ancient Rome from a law and sociology point of view, which will be a task involved into various subjects. Finally, I will seek the modern form of dowry in modern civil codes such as the institution of dowry in the Chilean Civil Code, try to understand the causes of such institution being abolished by some modern civil codes, in this part I will put emphasis on the French Civil Code (1804) and the Italian Civil Code (1942).

 

Methodology

Three methods will be mainly used in my academic research. (1) The exegetic analysis approach which is popular in studying Roman law. As we know, there are numbers of document of Roman laws. Especially we can find a great many fragments in Justinian's Corpus Juris Civilis , the biggest database of Roman law. By the method of “Exegesis”, I will classify those fragments of dowry appeared in different times, then make logical analysis and compare the distinction of such fragments. (2) The method of sociology. On one hand, the dowry in Roman law was affected by politics, economy and conventional social behavior. On the other hand, through studying the institution of dowry we can understand ancient culture of Rome and social consciousness. To reveal the historical background of dowry and the culture of that time, I would like to make a social analysis on the institution of dowry. (3) The means of comparative analysis. The institution of dowry was reinstated in medieval Western Europe and was adopted by several modern civil codes. However, the rules of dowry at such times and in those civil codes are quite different from Roman law. So in order to investigate the traces of Roman dowry in modern civil codes I want to compare the rules of dowry at different times and find out the distinctions in different countries.

 

Significance

The significance of this research includes two aspects. At first it's an attempt to study a special institution of Roman law intensively, which will promote the understanding of property relations between spouses in ancient Rome . Although Roman women were inferior in the early Roman law, they began to acquire important rights in many aspects of law especially after the late Republic and these rights were embodied mainly in the institution of dowry. Also this project will promote our understanding on the emancipation of ancient Roman women.

The second aspect is to understand the relationship between law and Roman society. It's generally agreed that the evolution of Roman law lies in the activities of praetors and emperors who carried out amendments on civil law based on the development of society. So the evolution of dowry was an appropriate example to examine the relationship between law and society. What's more, if possible, the research on dowry in modern civil codes will be a way to understand modern society.

 

Foreign Languages Proficiency

I have been an English language learner from junior high school till now. When I was an undergraduate student of a university in Wuhan , I passed the CET-6(College English Test, Band Six). Especially I have been persisting in learning English of law since I entered University of Xiamen in 2002 and translated the Egypt Civil Code (English version) into Chinese (which was published in 2008) in cooperation with others. So I think I'm quite proficient in using English to further my study. As far as the study of Roman law is concerned, it's necessary to master a European language. Fortunately, I have studied Italian for one year. But I will also try my best to improve it when I have a chance to further my study here because it is very helpful for my study.

 

Bibliography

1. Richard P. Saller, Roman Dowry and the Devolution of Property in the Principate , The Classical Quarterly, New Series, Vol.34, 1984.

2. Jane F. Gardner, The Recovery of Dowry in Roman Law , The Classical Quarterly, New Series, Vol.35, No.2. 1985.

3. K. Kagan, The Nature of Dowry in Roman Law-Rights of Husband and Wife , Tulane Law Review, Vol.20, 1946.

4. Hans Ankum, Societas Omnium Bonorum and Dos in Classical Roman Law , Israel Review, Vol.29, 1995.

5. S. Treggiari, Roman Marriage: Iusti Coniuges from the Time of Cicero to the Time of Ulpian , The Journal of Roman Studies, Vol.84, 1994.

6. B. Rawson, Marriage, Divorce and Children in Ancient Rome , The Journal of Roman Studies, Vol.84, 1994.

7. Percy Ellwood Corbett, The Roman Law of Marriage , The Journal of Roman Studies, Vol.20, 1930.

8. Siwan Anderson, Dowry and Property Rights , BREAD Working Paper, No.80, 2005.

9. Hughes, Diane Owen, From Brideprice to Dowry in Mediter-ranean Europe , Journal of Family History, 1978.

10. K. R. Bradley, Discovering the Roman Family: Studies in Roman Social History, The Journal of Roman Studies , Vol.84, 1994.

11. Marion A. Kaplan, Women and Dowry in European Histo ry , American Ethnologist, Vol.15, 1988.

12. J. Zhang, W. Chan, Dowry and wife's welfare: a theoretical and empirical analysis , Journal of Political Economy, 107(4), 1999.

13. Siwan Anderson, The Economics of Dowry and Brideprice , Journal of Economic Perspectives, 2007.

14. Srinivas M. N, Some Reflections on Dowry, Oxford University Press, 1984.

15. Muriel Nazzari, Disappearance of the Dowry: Women, Families, and Social Change in Saao Paulo , Brazil (1600-1900) , Stanford University Press, 1991.

16. Alan Watson , The Law of Persons in the Later Roman Republic , Clarendon Press, 1967.

17. Maine , Lectures on the Early History of Institutions , John Murray Ltd. London , 1875.

18. Mary R. Lefkowicz and Maureen B. Fant, Women's Life in Greece & Rome , Ohns Hopkins, 1992.

19. Bruce W. Frier, Thomas A. J. McGinn, A Case Book on Roman Family Law , Oxford University Press, 2004.

20. Corbett P. E. The Roman Law of Marriage , Clarendon Press, 1930.

21. Antti Arjava, Women and Law in Late Antiquity , Clarendon Press, 1996.

22. Jane F. Gardner, Family and Familia in Roman Law and Life , Clarendon Press, 1998.

23. Jack Goody , S. J.Tambiah , Bridewealth and Dowry , Cambridge University Press, 1973.

24. Barry Nicholas, An Introduction to Roman Law , Oxford University Press, 1996.

25. Mario Lauria, La dote romana , Napoli: I.T.E.A. Industrie ipografiche Editoriali Assimilate, 1938 .

26. Enrico Galluppi, La dote , Torino: Bocca, 1876 .

27. Francesco Guizzi, La restituzione della dote e le spese utili, Napoli: Jovene, 1957 .

28. Manlio Sargenti, “Usucapio pro suo" e costituzione di dote , Roma: Apollinaris, 1953 .

29. Raffaello D'ancona , Il concetto della dote nel diritto romano , Roma: L'Erma, 1972 .

30. Mario Ricca Barberis, La garanzia per evizione nella dote e nel patrimonio familiare , Torino: Giappichelli, 1950

31. Nicola Palazzolo, Dos Praelegata: Contributo alla storia del prelegato roman , Milano: Giuffrè, 1968 .

 

网页设计者信箱：jojobear_905@hotmail.com

网站管理员信箱：romanlaw@126.com