However, this seems to be of great significance as soon as we try to assess legal politics and legal practice. A concept that previously had a rationale, i.e., was of importance for legal practitioners, may later seem of little value because of obsolescence in a new societal context. Does legitimacy belong to those legal concepts that must necessarily fall into oblivion? This paper gives some short historical reflections that account for the disappearance of legitimacy from modern law. In Roman law as well as in the law of the Middle Ages, proper judgement of children's status was indispensable to the upholding of family stability. The Roman familia was not like a modern nuclear family consisting of man, wife and children only. The familia was a household that included many persons and things: wife, children, slaves, servants and living animals. Remarkably, the head of the familia, the paterfamilias was not himself a part of his family. The family with human beings and other property belonged to him. His position as the de facto owner of the familia made it possible for him to engage women who were not parts of the family. Concubinage became almost an alternative to marriage and caused hardly moral and social stigma, at least the concubine was morally respectable.8 Having one or more concubines together with a married wife was accepted especially among the wealthy. The concubine, however, never had the rank or status as a formal wife.9 119 Legitimacy in ancient law 8 Digest 25.7.1. 9 J. A. Brundage, Law, Sex, and Christian Society in Medieval Europe, 22-24. (Chicago 1987: Univ. of Chicago Press.) - Having concubines together with the formal wife was sometimes taken for granted if the conditions so demanded: “A man can have a concubine in the province where he holds office.” Digest 25.7.5.
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