Author(s): Mila Jovanović / Language(s): Serbian
Issue: 43/2003
The topic of this paper, following a brief overview of some issues in Roman procedural law, is custody in ancient Rome, with special emphasis on the custody of the conceived and yet unborn child, cura nascituri or cura ventris (cura bonorum ventris nominee). After specifying some differences between the contemporary and Roman procedural law (regarding both in-court and out-of- court proceedings), the author draws attention to the difficulties in defining Roman out-of-court proceedings and extra-judicial matters in general. Then, subsequent to the statement that there are no pronounced differences in the concept of professional capacity, the author points out to the distinctions between modern and Roman law in terms of the causes of incapacity, the categories of affected individuals, and institutions which make up for the lack of professional capacity. Further distinction has been made between tutorship (tutela) and custody (cura) in ancient Rome, followed by an attempt to define the custody of those times, which is difficult to accomplish in a precise and concise way. Beside enlisting some types of custody, the author draws attention to the procedural aspect of these matters, extra-judicial in particular, discussing the following issues: the appointment of the guardian by state agencies, including a possible inquiry to prove eligibility and fitness for such a task (inquisitio); the exemption from guardian duties for justifiable reasons (e.g. the number of one's natural children, the already-existing custody, taking up a public office or position, etc.); providing guarantees by the guardian, in co-operation with the state agency, as a safeguard for conscientious and efficient performance the tasks entrusted; the discharge of the guardian by the state agency; initiating proceedings against unconscientious guardians and their possible denunciation, etc. Finally, with due notice to the fact that the data on custody of the unborn child are meager and to some extent confusing in most of the sources available, the author has analyzed some aspects of the position of nasciturus in substantive law. Underlining some general rules, the author has analyzed the administrative procedure data related to the establishment of the institution and the custodian procedure of the nasciturus. Last, but not least, a relatively well-preserved text (Edictum perpetuum) from the codified praetorial law is provided, describing the custody procedure of the embryo (partus, nasciturus, venter), and indirectly referring to the mother of the embryo, the pregnant woman and the woman who has delivered. To the modern sensibility, the text may seem slightly odd, and rather humiliating for the woman. However, apart from being a testimony of the character of cura nascituri, this text provides an opportunity to discern the importance of medical developments and overall social progress in relation to both substantive and procedural law.
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