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100	1	0	_aThomas, Yan _eauthor
245	0	0	_aThe Unborn Child and the “Direct Heir” in Roman Law
260			_c2007.
500			_a99
520			_aRoman jurisprudence regarding the rights of the unborn child was not founded on considerations of a genetic nature, nor on any particular conception of embryonic life. The legal scholars of Antiquity did not consider the physical substrate of human existence or the stages of its development as physicians, and later theologians, would do. In order to consider the unborn child as an entity in law, they addressed issues of quite a different order. A good many general conclusions can be drawn from this, as long as we properly grasp the broad outlines. The problem arose exclusively in relation to the inheritance rights of children born after the death of their father. More precisely, the discussion centered on figure of the “direct heir,” who, according to civil law, succeeded their male ancestor on condition that they were subject to his authority at the very moment of his death ( potestas morientis). In order for this to apply posthumously, it was necessary to prolong the legal existence of the deceased until the birth of the child. Through this adjustment, the law compensated for any interruption or absence of authority, ensuring continuity in the handing down of power. An examination of a specific borderline case thus reveals not only the mechanisms of kinship and the law of succession, but also what is, in effect, a legal architecture of life. Inheritance of property did not occur on the basis of genetic transfer, but through a power that stood in for life and in a sense substituted it. This was the reason why Roman civil law needed to divide the genealogical time common to the living and the dead into segments suited to an authority that only linked together those who were alive at the same time, even if that meant, in certain cases, prolonging the notional existence of the dead. This is precisely what is at issue in the law of posthumous persons, whose functions relate to the elementary conditions of the exercise of power, rather than the genetic and physical features of life.
786	0		_nAnnales. Histoire, Sciences Sociales | 62d Year | 1 | 2007-01-01 | p. 29-68 | 2268-3763
856	4	1	_uhttps://shs.cairn.info/journal-annales-2007-1-page-29?lang=en&redirect-ssocas=7080
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