За защитата на partus в римското право
On the Protection of the Partus in Roman Law

Concepts and Principles

Summary/Abstract: The term partus may refer, in addition to giving birth, to both the conceived fetus and the new born infant in legal Roman sources. Partus highlights the continuity between the conceived and the newborn infant. The various provisions drawn up by Roman legal experts are rather concrete. The concept of partus is analyzed in defence of the fetus, the woman (and procreation) the newborn infant and the res publica. Justinianus frequently returns to the concept of nature with reference to the partus of a woman and procreation in the dispositions. The motivation is very interesting as it makes direct reference to the growth of the res publica (augeri nostram rempublicam). The ancient natural principle (or as it is called today biological and legal) mater semper certa, present in a fragment of Paul regarding la mater (D. 2,4,5; Tit. ex corporeUlp., IV, 2), in today’s reality, with the growing spread of assisted reproduction techniques, has been put into question. It is necessary to reflect upon the criteria in order to evaluate whether a law can be judged as being ‘good or bad’ (Cic., De legibus, 1,42 ss.). In this regard Cicero says that there can be no distinction made between a good or a bad law based on any norm if not that of nature (naturae norma) De legibus, 1,44); wishing them then to depend “on opinion and not on nature is madness”. The task of a legal expert is that of alerting against violations of the principles (by legislative power, by judicial power, by national or European bodies), based also on the ius naturale against the ideology of those which have been defined as “new rights’ without limits”.

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