Byzantine law

As we saw in Chapter Two, Classical Roman law recognized three types of guardians those who were appointed by testament (tutela tes-tamentaria), those who assumed the tutela based on their family relationship to the orphan (tutela legitima), and those who were appointed by magistrates (tutela Atiliana also known as tutela dativa). Byzantine law retained these distinctions in practice to the end of the empire, with the exception of the period of Iconoclastic law (741 867). In fact, Justinian s Institutes (circa 533) preserved the clearest description of the three types of guardianship to survive from Classical, Postclassical, or Byzantine times. ... 

When the emperor Basil I seized the throne in 867, he initiated a policy to restore the Byzantine law to its original Roman foundations. As a result, his first legal publication, the Prochiron, reestablished the old Roman system of three types of guardianship. The tenth-century Synopsis Basilicorum presented an even clearer outline of the Classical Roman system. " The eleventh-century private treatise by the lawyer Michael Attaleiates, on the other hand, acknowledged only two forms of guardianship the tutela testamentaria and the tutela legitima. At-... 

Just as Byzantine law preserved the Classical Roman definition of guardianship and most of its system of tutda classifications, so too it accepted the age limits assigned by the Classical jurists to the two stages of guardianship, tutda and cura. Justinian s Institutes clearly restated the Roman ages for the sixth-century Byzantine Empire. Tutors supervised boys until they reached the age of fourteen, girls until they reached the age of twelve. Thereafter, curators oversaw youths of both sexes until their wards turned twenty-five. ... 

Byzantine laws of guardianship developed from the Roman legal system of tutela and aira. Although Christian concepts... 

By granting women and eunuchs the right to adopt homeless children, Byzantine law also expanded protection by offering orphans a wider field of potential foster parents. Indeed, adopting women provided happy environments for five out of the eight successful adoptions found in our sample of seventy-seven children. ... 

In one area, however, Byzantine law failed to improve the lot of orphans. Our seventy-seven cases clearly show that adult older brothers who accepted guardianships did not protect their younger siblings nearly as well as uncles protected their nephews and nieces. Of the seven... 

Byzantine legal system. How much did Byzantine legislation alter the rules and the spirit of ancient Roman laws Did the laws issued by the emperors actually affect the daily lives of Byzantine subjects Finally, what sort of information can historians expect to find in the legislative texts and legal handbooks of Byzantium ... 

The story of how mothers came to exercise the rights of guardianship over their own children represents a key element in the unfolding of the Byzantine approach to child welfare. It also forms part of the process whereby the Christian emperors removed one by one the legal liabilities that women had suffered under the classical Roman legal system and the earlier laws of the individual Greek poleis. Moreover, it explains how, during the early Byzantine period, the term orphanos came to mean primarily children who had lost both parents. 

Beyond the archontopouhi of Alexios, ancient Greek institutions do not appear to have directly influenced Byzantine orphan care. Under the Roman Empire, the guardianship laws of Rome gradually supplanted the local customs of Athens and the other Hellenic poleis. Nevertheless, that the governments of Greek city-states expanded their responsibilities to include the protection of orphan citizens shows clearly that state concern for the care of children without parents predated the Christianization of the fourth century a.d. and even the spread of Roman power in the eastern Mediterranean basin (199-131 b.c.). 

In order to understand the Byzantine system of orphan care and eventually to evaluate its effectiveness, this chapter will also indicate any cases where changes in the Roman law of guardianship produced unintended effects. Constantine s legislation to protect orphans had, in fact, made it more difficult for some children to find guardians. Were there other such instances of unintended effects in the history of Byzantine guardianship law ... 

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