Fathers by Law, Fathers by Choice. Paternity and Illegitimacy between Ancien Régime and Codification in Western Countries

Paternity as a legal institute is historically marked by an instrinsical ambiguity: its aim is to acknowledge and provide judicial remedies for a natural phenomenon, which however cannot be ascertained and verified through the usual legal procedures. Legislators, therefore, never fail to evoke nature, but then they set off on a path of their own in order to regulate its different legal forms and cases. Moreover, civil law in Italy, in Europe and elsewhere, during the transition from the law system of the ancien régime to modern codifications, is marked by the troubled coexistence of two different and diverse elements: on one hand the tradition of the Roman and Canon law, on the other the model provided by the French revolution and the Napoleonic code. Paternity is thus caged inside the ancient Roman presumption, while bastardy is abandoned to the free will and choice of the parent: given the prohibition to investigate paternity out of wedlock, introduced in the XIX-century codes, he cannot be compelled to take responsibility. The disparity of status between legitimate offspring and bastards would shape family law for a long time.