Monday, January 25, 2016

Reid on the Forced Share in European Estates Law

Charles J. Reid Jr., University of St. Thomas School of Law, has posted two essays on the forced share, “the European doctrine of the forced share, according to which parents must set aside at least a portion of their estate for their children.”  Both are chapters in the Norwegian Academy of Sciences’ Donations: Strategies and Relations in the Latin West/Nordic Countries From the Late Roman Period Until Today, ed. Ole-Albert Ronning, Helle Moller Sighe & Helle Vogt (Routledge, 2016).  The first is The Jurisprudence of the Forced Share in the Ancient World: From Cicero to Justinian?
This paper is concerned with the origins of the European doctrine of the forced share, according to which parents must set aside at least a portion of their estate for their children. I begin this paper in Late Republican Rome with the adoption by the praetors of the cause of action for setting aside inofficious wills (the querela inofficiosi testamenti) and the enforcement of the Lex Falcidia, the statute establishing the forced share at one-quarter of the estate. I then consider the emergence of the vocabulary used to justify this mandatory estate practice, focusing in particular on the richly-textured noun pietas. I examine the social background of this practice, looking in particular at ancient concepts of marriage and family. I review Pliny the Younger's criticism of testators who neglected the interests of family members. And I close with the great legal reforms of the law of wills by the Emperors Theodosius II and Justinian.
The second is The Jurisprudence of the Forced Share: The High and Late Middle Ages:
This paper represents a continuation of themes I explored in The Jurisprudence of the Forced Share in the Ancient World. The article is divided into four main sections. In the first two sections, I examine three basic sets of ideas that would prove of vital significance to medieval lawyers as they justified the forced share. These were: (1) the ideal of reciprocity that came to be expressed in the noun pietas; (2) the relationship of natural law and natural rights to the moral obligation to provide for one's young; and (3) the expectation that all families would be characterized by an ideal the scholastic writers called natural love. The second two sections of the paper then explore principally the writings of the medieval canon lawyers and focus on several related themes: (1) the reemergence of the idea of testamentary freedom and the corresponding effort to restrain it through the mechanism of the forced share; (2) the jurisdictional claims of the Church to interpret wills and to judge testamentary disputes; and (3) the justification of the forced share as the final legal expression of pietas, reciprocity, natural love and natural rights.

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