Legal personality
Who or what was a 'person' in Roman law? To a modern lawyer, a legal person comprises an entity that is capable of legal relationships, i.e. of being the subject of legal rights and duties.
Human persons clearly come within this category. But legal persons can include non-human entities, e.g. a corporation has a legal personality which is separate from its individual members. For the Roman jurists, 'persons’ essentially meant human beings, but there were instances in the Empire where nonhuman entities were recognized as acquiring rights and duties. In some respects, these entities were treated as legal persons, although they were not described as such. The most important examples were collegia, municipia, churches, charities, and the State. See generally, Duff, P. W. (1938), Personality in Roman Private Law, Cambridge: Cambridge University Press.4.1.1 Collegia
These were mainly private associations or societies, often formed as trade guilds or burial clubs, and dedicated to a particular god. Their numbers flourished in the Republic, with potentially dangerous consequences in the disturbed conditions of the last century BC. Consequently, Julius Caesar reduced the number of collegia drastically, and Augustus banned the creation of new collegia without the authority of the Senate and the Emperor. Restrictions were later imposed on the frequency of meetings and on the number of collegia that an individual could join:
Marcian, Institutes, book 3: It is not permitted to belong to more than one collegium... and if someone belong to more than one, it is provided by rescript that he must choose the one to which he wishes to adhere and receive from the association which he leaves the share of the common fund which is due to him. (D.47.22.1.2.)
It is unclear how much legal personality such associations possessed, it seems that they could l>e allowed to hold property, to benefit from legal obligations and to appear as parties in legal proceedings.
Marcus Aurelius allowed collegia to set slaves free and to receive legacies, whilst Justinian ruled that collegia could be appointed as heirs in a will.4.1.2 Municipia
Municipia ('municipalities') comprised the different types of local community to be found in the Roman Empire. They possessed varying degrees of corporate character, depending on how much had been granted to them on their incorporation within the Empire. The community acted through its representatives, but it was regarded as having a legal personality distinct from them and its inhabitants. Communities could thus own property, could be beneficiaries under trusts, could receive legacies, and in the late Empire, could even be appointed as testamentary heirs.
4.1.3 Churches and charities
After the conversion to Christianity, Constantine ruled that gifts and legacies could be left to the Church generally or to individual churches. In the latter case, the property was regarded as owned by the members of the church of the deceased, not as individuals but as a body. The local bishop or his delegates administered the property. Moreover, it seems that churches could be appointed as testamentary heirs.
Gifts to charities were not unknown before the adoption of Christianity, but proliferated thereafter. Often, such gifts were made to a particular church or bishop to administer on behalf of the charity. Where a charitable gift was made without reference to a church, the bishop or the church of the donor's locality administered it, unless that was contrary to the donor's wishes. Even then the bishop had a supervisory power, following a decree by Justinian.
4.1.4 The State
In the Republic, the Roman people were regarded as owning certain types of property that was not capable of private ownership, e.g. provincial land, the seashore (see generally 6.1.2). Magistrates could act for the people in relation to such property (including gifts made to certain deities) but only as representatives—the property in theory belonged to the people as a body:
Gaius, Institutes, book 2: Those things which are subject to human right are either public or private.
Public things are considered to be nobody's property for they belong corporately to the whole community. (0.1.S.lpr.)In the Empire, the importance of the concept of the Roman people as an entity waned somewhat when the full extent of the Emperor’s position became apparent. The imperial treasury (fiscus), which contained the Emperor's purse, acquired a distinct legal personality. It could appear through its officers as a party in litigation and could acquire property in a variety of ways, e.g. through the confiscation of inheritances. Who owned the property acquired by the fiscus? It appears that, in the early Empire, the emperor was regarded as the owner, jointly with the Roman people. Later, the property was regarded (in theory at least) as belonging to the State rather than the emperor because strictly it could not be disposed by him in
Status, Slavery, and Citizenship 89
his private capacity, but had to pass to his successor (see further, Schulz, E, Clussiml Roman Law (1951), 86-102).
For a good recent account, see Lewis, A. 1). E., 'Slavery, Family and Status', in Cambridge Companion, 151-74.
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