Bryn Mawr Classical Review

Some interesting facts lie scattered through this otherwise rather unambitious book. Did you know, for instance, that adoption--the full legal absorption of one person into the family of another--only became possible in Britain in 1926, as a result of the Adoption Act (p. 25)? Presumably this resulted from enduring British concern about pure blood lines. But even in the United States adoption was legally permitted only from the 1850s onward (p. 23), and only in the twentieth century did adoption assume its full modern form, as a device for protecting orphaned or abandoned children, within the broader protective structure of contemporary welfare states.¹

What this suggests is that considerable care is required in approaching adoption in ancient or pre-modern societies. Unfortunately, while Hugh Lindsay's heart is plainly in the right place, his rambling presentation does little to clarify things. The "rambling" part is exceptionally vexatious: long excursions into, for instance, adoption in the ancient Near East, India, Oceania, Japan, and China (pp. 5-21), the Gortyn Code (pp. 38-40), the Athenian law of adoption (pp. 40-60), Roman nomenclature (pp. 87-95), the theory and reality of patria potestas (pp. 97-100), the basic Roman law of succession (pp. 100-103), and so on, and on--all of which, truth be told, might have been of some real assistance had they been (as they are not) folded within a convincing analytical design. As it is, Lindsay makes no real effort at integration until his perfunctory "Conclusion" (pp. 217-220)--which, however, a reader might profitably peruse not last but first, in order to get at least an inkling of where the book is supposed to be going.

The classical institution of adoption can be approached from a number of directions, including literary references and patterns of nomenclature on inscriptions and elsewhere.² But pride of place goes to legal sources, which not only describe the institution itself, but also, through hypothetical problems the jurists develop, give some inkling of how adoption was actually used in the Roman world. Here Jane Gardner's Family and Familia is of particular importance.³ Gardner had, especially, the eminent good sense to associate adoptio closely with its institutional Doppelgänger emancipation, as part of a legal "tool box" that the Roman paterfamilias had on hand for reshaping the contours of his familia. This was a real advance in our understanding, but one requiring intimate knowledge of the basic source material.

Lindsay's book is of lesser caliber. He describes it as having "some common ground" with Gardner's, "although it is on the whole less legal, and more concerned with the practical operation of adoption in different situations" (p. ix). But much in the book suggests that Lindsay is actually rather uncomfortable with legal sources, even fairly simple ones. When, for instance, he is obliged to describe the institutional structure of adoption, his discussion wanders inexplicably, and he often resorts simply to quoting the jurists without even the semblance of critical treatment. A salient example is on pp. 114-115, discussing the rule whereby an adopted person lost his right of succession within his family of origin. "This is articulated as follows in the Digest:"; and there follow 25 lines of small print translation of texts from Paul, Ulpian, and Modestinus (the name of this last is omitted), with the original text provided in footnotes.⁴ No Interpolationskritik, of course; but also no bibliography of any kind, no further commentary. And certainly no exertion, even the slightest, to reach underlying principles and conceptions.

For such lassitude, the explanation is perhaps impatience, or perhaps not. But whatever the cause, it makes the crucial middle chapters of this book (on the adoption procedure, testamentary adoption, Roman nomenclature after adoption, and adoption in the law of succession) something of a dispiriting slog, which is helped along not at all by the book's chaotic organization. (E.g., the fundamental distinction between adoptio and adrogatio is introduced only on pp. 74-75: after rather than before the discussion of other procedural aspects of adoption.) On the whole, W.W. Buckland provides not only a much clearer and more concise narrative of this law, but also (mirabile dictu) a more interesting one.⁵

In any case, neglecting the law was a major error in strategy, for adoption, like all historical institutions of family law no matter how "natural" they may seem to us, are notoriously protean over time, and the "practical operation" of Roman adoption, in particular, takes some strange turns. The welfare of a child is not normally paramount in Roman law, although it may have been given marginal attention; Justinian, for instance, mentions an "old rule" (ius vetus), otherwise unknown, whereby children could obstruct adoption by objecting openly (C. 8.47.10 pr., cf. 11; both of 530 CE). As for adrogatio of minor orphans, older law forbade it altogether; only latterly, through imperial constitution, was this permitted, but then only to the child's close relatives, apparently in an effort to prevent child abuse (pp. 69-70). (Sancta simplicitas!) Still, there may have been a slowly rising concern for child welfare, as manifested in imperial dispensations allowing women to adopt (pp. 71-73).

Nonetheless, as Lindsay often and rightly insists (e.g., p. xii), the chief purpose of adoptio, in ordinary life, was the continuity of the familia in three important respects: nomen, pecunia, and sacra (so Cicero, de Domo 35): that is, the onward passage, from one generation to the next, of the family name, the family property, and the family religious rites. The Romans paid a steep price for their dogmatic commitment in this matter, since it seemed to militate against the adoption of juvenile orphans (with the attendant destruction of an independent familia); thus, adrogatio was deliberately preserved as a truly cumbersome public procedure, and one that remained so even when the archaic lex curiata was finally abandoned in favor of adoption through rescript (pp. 76-77).

Emphasis on intergenerational continuity lent Roman adoption an unexpected but decidedly deliberate connection to the law of succession (pp. 97-122)--what we might think of, broadly, as family planning for a time when a paterfamilias would no longer be alive. Some of the oddest aspects of adoptio spring from this notion: for instance, the requirement of a substantial age difference between adopter and adoptee, in order to mimic nature, and the more controverted requirement that the adopter be of an age unlikely to result in issue of his own (pp. 66-68). From close study of reported cases, it is also clear that adoptions often involved a strong preference for fairly close blood relatives (cognati), adoption thereby providing "a method for the wealthy to keep estates closely held within the extended family" (p. 159, cf. 146-168).

When adoption inter vivos had not been effected, a testator could resort to the more fragile institution of testamentary "adoption": inheritance accompanied by a requirement that the heir assume the decedent's nomen (pp. 79-86). Here it seems clear above all from Gaius (2 Fideic.), D. 36.1.65.10 (citing Julian),⁶ that an heir might avoid this condition when the testator's family name was infamous or debased, and that indeed, through a procedural sleight of hand (gotta love those jurists!), he might even avoid the condition altogether if he so chose. In any case, it is more than doubtful, although the point is still controverted, that testamentary adoption constituted a true adoption--which may help to explain why Octavian insisted on both his testamentary adoption by Julius Caesar and a more formal, if highly irregular, procedure for a post mortem adoption (pp. 182-189).

It is this concentration on "familia-scaping" that drives Roman adoption law in a truly bizarre direction: toward redesign of the familia from within. A number of legal sources, which may perhaps be paralleled by famous sources like Pliny, Ep. 8.18, on the brothers Domitii, speak of extraordinary efforts by patres in this regard. For instance, a father might emancipate his son, then adopt him as a grandson alongside the son's own son (Ulpian, D. 38.6.1.7); or adopt the emancipated son as a grandson and then re-emancipate him (Ulpian, D. 37.4.1.7). Or a man with two grandsons might emancipate one and then adopt him as a son, either with or without potential power over the other grandson (Ulpian, D. 37.4.3.1-2). Or a man with a son and a grandson by that son might emancipate the grandson and adopt him as a son alongside his father (ibid. 3). And so on. These texts, spasmodically considered by Lindsay but more fully appreciated by Gardner,⁷ reveal a certain restlessness within the staid Roman familia, an anxiety that law was ill designed to channel. We do not even know what "adoption" means in contexts such as these; why not adrogatio?

In his final substantive chapters, Lindsay turns to another subject: the use of adoption for political purposes, either interfamily alliances or the creation of fictive dynasties. This field is previously well tilled, and things go rather better. Modern studies have established "that adoption was a significant tool employed in the service of the amalgamation of the plebeian and patrician aristocracy" (p. 192); this pattern is discovered not only in Rome, but also in Pompeii and Ostia. Sporadic late Republican political adoptions (such as of Clodius or Octavian) evolve in the Empire into systematic attempts to establish successors--once again, adoption adapted, so to speak. Lindsay presents what is largely the research of others, but in fairly clear form.

On the whole, however, this book gives little value added. Christiane Kunst's 2005 book, although unduly speculative in part, is a considerably more valuable contribution, and as to the general social uses of adoption the best book to read, if you're reading only one.

1.   Ellen Herman, Kinship by Design: A History of Adoption in the Modern United States (2008). Because of Roman law, adoption had long since been possible in Civil Law jurisdictions, although often with restrictions that had accompanied the Roman rules. However, in practice it was actively discouraged by the Catholic Church. See Kristin Elizabeth Gager, Blood Ties and Fictive Ties: Adoption and Family Life in Early Modern France (1996).
2.   The non-legal bibliography has become extensive. See, e.g., Mireille Corbier, "Divorce and Adoption as Roman Familial Strategies," in Beryl Rawson (ed.), Marriage, Divorce and Children in Ancient Rome (1991) 47-78, and (as ed.) Adoption et 'Fosterage' (1999); Olli Salomies, Adoptive and Polyonomous Nomenclature in the Roman Empire (1992); and especially Christiane Kunst, Römische Adoption: Zur Strategie einer Familienorganisation (2005).
3.   Jane F. Gardner, Family and Familia in Roman Law and Life (Oxford: Clarendon Press, 1998). See the review by Marilyn Skinner (1999.02.10).
4.   The translations are lightly adapted from Alan Watson's translation. Comparable is the 24-line citation on pp. 69-71, also without discussion.
5.   W.W. Buckland, A Text-Book of Roman Law (3rd ed. Peter Stein; 1966) 121-128, and, with Arnold D. McNair, Roman Law and Common Law: A Comparison in Outline (2nd ed. ed. F.H. Lawson; 1965) 41-46. From there, graduate to Carmela Russo Ruggeri, La Datio in Adoptionem vols. 1-2 (1990, 1995).
6.   Cf. p. 83, where the text is truncated; I refer to the full text.
7.   Gardner, Family 190-199.