Gender-Role Assumptions in Roman Law
Jane F. Gardner
Echos du monde classique: Classical views, Volume XXXIX, n.s. 14, Number
3, 1995, pp. 377-400 (Article)
Published by University of Toronto Press
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Echos du Monde Classique/Classical Views
XXXIX, n.s. 14, 1995,377-400
GENDER-RoLE ASSUMPTIONS IN ROMAN LAW
JANE F. GARDNER
Women are an inconvenient anomaly in Roman law; they appear
almost as an afterthought. The whole system is framed in terms of a
legal construct, the familia, and in terms of interaction between male
heads of familia. The familia itself, which consists both of property
and of free persons, is defined in terms of dependence from and
exclusive control by a biological male, the paterfamilias, who doubles
the role of owner of the property and biological or adoptive ascendant
of the persons. As Ulpian explains the death of a pater releases
those in his potestas, who each then begin to have a familia; but
since a woman cannot have potestas, her familia consists solely of
herself and her property.l It cannot include free descendants; this is
the central asymmetry of Roman law.
This has two consequences for women. One is that in family law
there is a sharp distinction between the gender roles of men and
women. A woman's role in relation to the familia of her husband
largely coincides with her biological role as mother in the family; she
is an outsider to his familia, and so she lacks legal authority within
the family. Secondly, outside the family, although for most practical
purposes women have the legal status of honorary males (qua heads
of a one-person familia), they are excluded from certain areas of legal
interaction between male heads of familia, to some of which gender
is not obviously relevant. The reason for this exclusion is that only
males have potestas--eontrol over other free persons (of either sex)so that a woman can never be a paterfamilias in the full sense,
merely a property-owner. 2 The result is that women are
marginalised, on legal grounds, both inside and outside the family.
The purpose of this paper is to explore other ways in which
women are marginalised, not in their capacity for legal action, but in
words, in the thinking and expression of the men who formulate and
I Dig. 50.16.195.2: cum pater familias moritur, quotquot capita ei subiecta
fuerint, singulas familias incipiunt habere . ... Mulier autem familiae suae et
caput et finis est. ("When a paterfamilias dies, all those persons in his
potestas each begin to have a familia . .. Now a woman is the beginning
and end of her familia.")
2 For the legal status of women in Roman society, see Gardner 1993, ch.
4.
377
378
JANE F. GARDNER
interpret Roman law, often even without justification in any specific
rule of law. Sometimes non-legal stereotypes are brought in to
support legal rules-or even cited in their place. There was a lay
perception of women as biologically inferior, mentally as well as
physically, to men and as naturally subordinate to them. This was
reinforced by their legal situation, to the extent that, as a number of
scholars have already observed,3 legal writers can actually be found
citing these stereotypes as rationale for certain legal rules limiting
women's legal capacity. Another feature, which makes difficulties for
modern historians trying to gauge the actual extent of women's
economic and legal activity in Roman society, is that while there is
extensive overlap between the legal capacity of Roman women and
men, and relatively few (though important) areas are reserved to
men, Latin legal writers, like users of Latin in general, habitually
make use of masculine forms. This phenomenon is observable in
other languages and societies, and is a matter of convenience, rather
than tendentious purpose; it does, however, mask female action.
First, certain linguistic habits of Roman legal writers will be
examined, in order to draw attention to the ways in which these
reinforced hierarchical assumptions about the roles actually exercised
by men and women in Roman society, and especially to the way they
concealed and thus minimised awareness of the potential or actual
presence and activity of women. Secondly, a few specific instances
will be pointed out where interpretation of the law is based on such
hierarchical assumptions, rather than on a legal rule (even where a
relevant rule exists).
Since everything in Roman civil law turns around the familia, the
terms paterfamilias and materfamilias obviously have a special
importance. First, however, it is worth paying some attention to how
certain other gender-words appear in legal writings.
Mas and masculus are the commonest words for biological males,
and femina is often found conjoined with these, in inclusive
expressions, such as "either male or female" or "both male and
female." Roman lawyers, like other male writers, exhibit the common
habit of putting the superior, dominant term first in such pairs or in
lists: "male or female, free or slave, adult or minor, legally
independent or subject to potestas."4 This usage is extremely
3 See
especially Beaucamp 1976, Dixon 1984, Gardner 1993.
Occasionally this could work to women's advantage, when allowances were
made for their inexperience (imperitia) and presumed ignorance of law (van
Warmelo 1954).
4 Dig. 14.1.1.16; 43.29.3.1; 47.10.15.16; VIp. Reg. 8.5, 10.1
GENDER-ROLE ASSUMPTIONS IN ROMAN LAW
379
consistent, except for a few examples in two jurists, Gaius and Paul,
both of whom normally have the conventional order. 5
Often mas or masculus is used, as femina is as well, where for
technical reasons, including reasons of legal capacity, it matters
whether the person is biologically male or female; in many areas of
law, the sex of a person is irrelevant. However, there is a group of
texts in which these words are used precisely in order to explain to
us that, where sex is irrelevant, lawyers will always understand the
male term to include females as well.6 One academic jurist,
Pomponius, remarks severely that the reverse, to take a feminine
term to include males, is undesirable practice (pessimo exemplo).7
This is in itself sensible; since women's legal rights are less
extensive than those of men, though to a large extent coincident with
them, it makes sense to use the more inclusive term (the masculine)
generically, and the feminine where one desires for some purpose to
be specific. However, this grammatical habit is more than a
schoolroom joke ("male embraces female"); it has important
implications for the visibility of women in anything written about
Roman law if, in reference to activities which are not in themselves
gender-specific, a term appropriate to a biological male is routinely
used.
For gender roles, vir and femina or mulier are the common words. 8
5 Gaius, Inst. 2.128; Dig. 26.2.1 pr.; 50.16.152; Paul. Dig. 36.1.42(41),
49.15.19.4. There is no obvious reason for the variation in Paul; in Gaius
the exceptions are usually explained by the context-women are
emphasised as either the more frequent or the more unusual case.
6 Dig. 31.45 pr., 32.62, 50.16.1, 152, 195.
7 Dig. 31.45 pro (Pomponius viii ad Quintum Mucium) Si ita sit scriptum:
"{iliabus meis centum aureos do" an et masculini generis et feminini liberis
legatum videatur? nam si ita scriptum esset: "{iliis meis hosce tutores do,"
responsum est etiam filiabus tutores datos esse. quod non est ex contrario
accipiendum, ut filiarum nomine etiam masculi contineantur: exemplo enim
pessimo est feminino vocabulo etiam masculos contineri. ("If what was
written was: 'I give my daughters (filiabus) one hundred gold pieces,' would
it appear that the legacy was left to children both of the masculine and the
feminine kind? For if it had been written: 'I assign my sons (filiis) the
following guardians,' legal opinion has been given that guardians were
assigned also to daughters. This is not to be understood conversely, that
males also are contained in the term 'daughters': for it is a very bad
example for males also to be included under a feminine term.")
8 There does not, however, appear in general to be any particular
rhetorical significance in the choice of different terms for "man" and
"woman" in particular legal contexts, as I'Hoir 1992 demonstrated was the
case for the choice between vir and homo or between femina and mulier in
some literary prose authors.
JANE F. GARDNER
380
Comparison between the sexes, however, shows interesting
differences. Of the adjectives relating to their respective roles in
society which are conjoined with the words vir and {emina, those for
the man concern a rank or status arising from an actual role
fulfilled--eonsularis, prae{ectorius, etc. Those for the woman are few
and are found to arise from their biological descent or marital
relationship to a man (e.g. praetoria, consularis).9 Ulpian, a jurist
more prone than most to overt expression of sexist attitudes,
remarks (Dig. 1.9.1): "No one is in doubt that a consular man must
have preference over a consular woman. But let us see whether a
praetorian man has preference over a consular woman. I think he
does, because there is greater dignitas in the male sex."10
The question of the justification of such protocol apart, the terms
"consular" and "praetorian" are simply descriptive. However, when
we turn to certain other adjectives, conventional attitudes in Roman
society to the appropriate behaviour and relative status of the two
sexes are more in evidence, even although the adjectives themselves
appear only to be used simply descriptively. One might hope that
muliebris would provide some interesting usages illustrating
stereotypes of womanliness; but it is not in fact used to characterise
"womanly" reactions or emotions. Apart from 3 passages referring to
the "female part" in sexual acts being taken by men, II muliebris is
used in legal writings only in connection with certain material
objects, i.e., those adornments, jewellery and clothing conventionally
regarded as exclusively or primarily for women's use. The context is
usually to do with determining precisely what is comprised in a
legacy of "woman's items."12 On adornments Paul, in particular, says
things like "Those items are agreed to be adornments which women
have begun to use to adorn themselves and make themselves
attractive, even if," he continues, "some of them, such as turbans and
headbands, have another use as well" (ornamentorum esse constat,
9
See Gardner 1986, 67.
10 Consulari feminae utique eonsularem virum praeferendum nemo
ambigit. sed vir praefeetorius an eonsulari feminae praeferatur, videndum.
putem praeferri, quia maior dignitas est in sexu virili. He goes on:
Consulares autem feminas dieimus eonsularium uxores: adieit Saturninus
etiam matres, quod nee usquam relatum est nee umquam reeeptum. ("By
'consular women,' we mean the wives of consuls: Saturninus adds their
mothers as well, but that is neither set down anywhere, nor has it ever
been accepted.")
II Dig. 3.1.1.6, Coll. 5.1.1, Coll. 5.3.2 = C.Th. 9.7.6 (A.D. 390)
12 For "ornaments" see Dig. 34.2.25.10, 26, and 34.2.32.4; Paul. Sent.
3.6.
GENDER-ROLE ASSUMPTIONS IN ROMAN LAW
381
quibus uti mulieres uenustatis et ornatus causa coeperunt [Dig.
34.2.26]), and elsewhere "When a legacy is made of women's
toiletries, comprised are those items by means of which a woman is
made mundior and lautior [better-groomed and made-up]" (Mundo
muliebri legato, ea cedunt, per quae mundior mulier lautiorque efficitur
[Sent. 3.6.83]), and he specifies them.
Obviously, there is an implicit gender differentiation here. It is
hard to believe that men never used such things as mirrors, bathstools, or unguents and the various containers Paul mentions; how
would those used by men be described in a will? Women's toiletries
and jewellery are clearly inclusive terms in common use by people
making wills, and lawyers are careful to define their meaning; but
there is no corresponding discussion of legacies of ornamental or
cosmetic "men's items." They are not conceived of as a separate
category, one may suggest, because it is simply assumed that men's
use of such things is purely practical and utilitarian and needs no
further comment; when used by women, they have purposes beyond
the mere necessities of cleanliness. 13
Clothing, however, was manifestly of practical use, and was often
sex-specific. If there was a legacy of men's clothing or women's
clothing it was of primary importance to determine what the testator
understood by the term, in order to identify the content of the
bequest. 14
Various types of women's clothing (muliebria) are listed by Ulpian
(Dig. 34.2.23.2) with a passing recognition that some are ornamental
rather than useful. When we turn, however, to the companion term
uirilia, there are more overt assumptions about proper gender roles.
There is a dress code, breach of which incurs contempt and disgrace
13 For negative male attitudes among Romans to
women's use of
adornment, see especially Wyke 1994. For a milder contemporary
expression of such attitudes, one may compare the nervous care with which
the term "perfume" is avoided in advertising what are in fact perfumes for
men, and names are given them with connotations of masculinity or high
culture.
14 This gave rise to a famous opinion of the Republican jurist Q. Mucius
Scaevola, cited by Pomponius (Dig. 34.2.33). It was held that in
determining the content of such a legacy, the testator's intent must be
considered, rather than whether the items actually were typical men's or
women's wear. Mucius said that he knew a certain senator who was in the
habit of dressing for dinner in women's dresses. If that man left a legacy of
women's clothing, said Mucius, that should not be taken to include these
garments, because he was using them as men's wear. This is probably as
near as one gets to a legal joke.
382
JANE F. GARDNER
for men. 15 Some clothes are men's clothes-and Ulpian simply lists
them. Women's clothes are also listed, but with the addition quibus
vir non facile uti potest sine vituperatione-a man who uses them is
likely to incur strong censure. Paul defines men's clothes as those
which a man can wear salvo pudore virilitatis-without casting
shame on his manliness. 16 There is surely a gender hierarchy here; a
man who puts on women's clothes is demeaning himself by adopting
the persona of persons who are not fully his legal, and therefore in an
important sense not his social, equals. Paul is expressing a common
social stereotype, but it is one which I believe has legal origins; my
view, argued at greater length in Gardner 1993 (ch. 4), is that the
social stereotyping in classical Roman society of women as mentally
weaker than and subordinate to men is the consequence, rather than
the cause, of their lesser legal status which itself goes back to a very
early stage of Roman society.
Our extant legal texts belong in the main to the third century A.D.
or later, and so may reasonably be held to reflect the moralising
attitudes to mollitia ("effeminacy"), extravagance and luxuria ("selfindulgence") which had been current for centuries; however, it is hard
to resist the belief that their presentation as characteristically
feminine owes something in its origin to the disparity in legal
capacity and status between the sexes; contrast the masculine
stereotype of the practical and responsible bonus paterfamilias
(below).
Virile is also used of certain particular duties and functions in life
which are pronounced to be "men's work," and women are excluded
from them-being a tutor, standing surety for other people or
representing them in court, banking. For this exclusion there is in
15 Dig. 34.2.23.2: "All clothing is either men's (virilia) or children's
(puerilia) or women's (muliebria) or unisex (communia) or slave's
(familiarica). Men's clothes are those prepared for the use of the
paterfamilias himself, such as togas, tunics, cloaks of various sorts, and the
like . . . . Women's clothes are those got for the materfamilias, which a
man cannot readily use without incurring censure (quibus vir non facile
potest uti sine vituperatione), such as over-dresses (stolae), robes (pallae
tunicae), vests (capitia) , girdles (zonae), turbans (mitrae), if bought for use
rather than ornament, flounces (plagulae), capes (paenulae). Unisex are
those used indiscriminately by a woman as well as a man, like a cloak or
mantle of that sort or anything else which either a man or a woman may
use without reproach (sine reprehensione)."
16 Paul. Sent. 3.6.80: Veste virili legata, ea tantummodo debebuntur, quae
ad usum virilem salvo pudore virilitatis attinent. ("When a legacy is left of
men's clothing, only those are included which are appropriate for a man's
use without shaming his masculinity.")
GENDER-ROLE ASSUMPTIONS IN ROMAN LAW
383
fact an underlying legal reason, i.e., the exclusively male capacity to
have potestas and the end-stopped and quasi-fictional character of a
so-called familia headed by a womanY However, it is often ascribed
to supposed feminine weakness. Tryphoninus, a jurist of the time of
Septimius Severus, gives the fullest expression to this male
chauvinist assumption that women were mentally not up to it. 18
Mothers, according to him, are not expected to take on the
responsibility of prosecuting for misconduct a defaulting guardian of
their children, because it takes a male mind (virilis animus) to be
capable of forming a judgment on such actions and assessing them.
Central, however, to all consideration of gender roles is the word
paterfamilias, and it is time to turn to the usage of that word and of
another word of similar form, but by no means symmetrical usage,
materfamilias.
Since so much hinges upon the familia, what was the legal
definition of a familia, and how does that relate to gender roles? In
Dig. 50.16-a title devoted to the meanings of words in legal useUlpian gives various meanings of the word in common usage; but the
meaning in strict law (iure proprio), he says (195.2), is the following:
familiam dicimus plures personas, quae sunt sub unius potestate aut
natura aut iure subiectae, ut puta patrem familias, matrem familias,
filium familias, filiam familias quique deinceps vicem eorum
sequuntur, ut puta nepotes et neptes et deinceps. ("In the strict legal
sense we call familia a number of persons who are by nature or by
law subject to the control of one person, for example father of a
familia, mother of a familia, son of a familia, daughter of a familia,
and those who succeed them, for example grandsons and
granddaughters, and so on.")
The paterfamilias, Ulpian continues, is the person who has
absolute control (dominium) within the domus. Literally the word
means "father of a familia" and this is the correct term to use, even if
17 Dig. 2.13.12, 3.1.1.5, 5.1.12.2, 16.1.1, 26.1.16 (cf. 18), 50.17.2; C.
Justin. 2.12.18, 5.35.3; Gardner 1993, 85-89, 97-101.
18 Dig. 26.6.4.4: Quae autem suspectum tutorem non fecit, nec verbis nec
sententia constitutionis in poenam incidit, quod eiusmodi facta diiudicare et
aestimare virilis animi est et potest etiam delicta ignorare mater, satisque est
eam petisse talem, qui inquisitione per praetorem habita idoneus apparuit.
("However, neither the words nor the intention of the emperor's
constitution make liable to penalty the woman who did not prosecute a
tutor for misconduct, since forming a judgment on such actions and
assessing them takes a male mind, and the mother can be unaware even of
delicts; and it is sufficient if she asked for a tutor such that he appeared
suitable at the praetor's initial enquiry.")
384
JANE F. GARDNER
the individual in question has no children or is an underage child,
because, he says, the term paterfamilias does not merely designate a
person, but a legal right. We can turn this on its head. Paterfamilias
denotes a gender-specific authority. Only biological males can have
potestas, and this is what is indicated by the term pater; actual
paternity is not a requisite. 19
The situation is quite different with the term materfamilias. The
similarity in form between the words paterfamilias and
materfamilias conceals very real status differences between the two
persons referred to. Originally there was a hierarchical relationship
between them. The materfamilias had no legal independence;
juridically she was equated with a daughter. She was subjected in
law (iure subiecta) to the paterfamilias, having been transferred into
his familia and potestas by legal process accompanying or fairly soon
after the marriage; this was known as being in his manus. This was
at one time virtually universal practice, so that Cicero is able in
Topica 3.14, in illustrating an argument from genus and species, to
say that only a woman married with manus is materfamilias; the
rest are uxores.
Materfamilias, however, in Ulpian's text is a legal anachronism; it
is very doubtful whether by his time any wives at all entered into
manus. Indeed, long before his time materfamilias had actually come
to be used merely to describe a married woman who was in no-one's
potestas at all but legally independent (sui iuris), her father having
died, as distinct from one who was still a filiafamilias. 20
Paterfamilias is very frequently used in this way also, merely to
specify that someone is legally independent and no longer a
filiusfamilias. 21
19 There are other ways of adding members to one's familia, besides
siring them, as, for example, by adoption, so that impotence is no
impediment either (Gaius Inst. 1.103; Justin. Inst. 1.11.9 confirms, but
excludes castrati). Bachelors could adopt (Dig. 1.7.30).
20 Dig. 1.6.4; 24.3.30.1; 24.3.34
21 References are far too numerous too cite, but for the change in status
see, e.g., Dig. 3.5.14 (15), from Paul's commentary on the edict:
Pomponius libro vicensimo sexto in negotiis gestis initio cuiusque temporis
condicionem spectandam ait. quid enim, inquit, si pupilli negotia coeperim
gerere et inter moras pubes factus sit? vel servi aut filii familias et interea
liber aut pater familias effectus sit? ("Pomponius in Book 26 says that in
matters of services rendered one must have regard to the legal status [of
the beneficiary] at the beginning of each period. For, he says, what if I
began to conduct business on behalf of a minor and during the intervening
delays he reached adulthood? or on behalf of a slave or a son-in-power and
GENDER-ROLE ASSUMPTIONS IN ROMAN LAW
385
The materfamilias ought to have no place at all in Ulpian's
definition of a familia, since in legal terms she was an outsider to it.
In including her in this passage, he is running together the strict
legal sense of familia with other, less technical, meanings that
include the persons in a household and approximate to the biological
and emotional association that we tend to call a "family."
Materfamilias, mother of a familia, calls attention to the woman's
biological function in producing its children. In fact the term is
sometimes used indistinguishably from another, non-legal, term,
matrona, which in ordinary usage means a married woman. The
Romans found difficulty in distinguishing between the two words.
Aulus Gellius 22 rejects the suggestion of Aelius Melissus, a
grammarian who wrote a book on correctness of language (de
proprietate loquendi), of which Gellius makes his own poor opinion
meanwhile he was made free or a paterfamilias [i.e., legally
independent]?")
22 Gel. 18.6.4: "Matrona" est quae semel peperit, quae saepius "mater
familias" . . . . Utrum autem hoc de matrona et de matrefamilias Melissus
excogitaverit ipse et coniectaverit, an scriptum ab alio quo legerit, hariolis
profecto est opus . . . . sed matronam non esse appellatam, nisi quae semel
peperit, neque matrem familias, nisi quae saepius, nullis veterum scriptorUl.'1.
auctoritatibus confirmari potest. Enimvero illud impendio probabilius est,
quod idonei vocum antiquarum enarratores tradiderunt, matronam dictam
esse proprie, quae in matrimonium cum viro convenisset, quoad in eo
matrimonio maneret, etiamsi liberi nondum nati forent, dictamque ita esse a
matris nomine, non adepto iam, sed cum spe et omine mox adipiscendi, unde
ipsum quoque matrimonium dicitur, matrem autem familias appellatam esse
eam solam, quae in mariti manu mancipioque esset, quoniam non in
matrimonium tantum, sed in familiam quoque mariti et sui heredis locum
venisset. (Aelius Melissus said that "'Matrona' is a woman who has given
birth once, 'materfamilias' one who has done so several times
Whether this about mater and materfamilias was something Melissus
thought up himself and his own guess, or whether he read it in some other
writer, it would take a fortune-teller to find out .
It cannot be
confirmed by the authority of any ancient writer that only a woman who
gave birth once was called a matrona or that only a woman who gave birth
more often was called a materfamilias. Indeed, much more likely is the
explanation given by competent interpreters of ancient vocabulary, that
matrona was the proper term for a woman who had contracted marriage
with a man, so long as she remained in that marriage, even if children had
not yet been born, and that she was so called from the title "mother"
(mater), which she had not yet acquired but had every hope and prospect of
acquiring soon (whence also the word matrimonium), whereas that woman
alone was called materfamilias who was in the manus and control of a
husband, since she had come not only into matrimony but also into the
familia of her husband and into the situation of a suus heres [heir on
intestacy].")
386
JANE F. GARDNER
evident. Melissus said that the difference was that a matrona was
someone who had given birth only once, a materfamilias several
times. Gellius himself thinks more probable the distinction proposed,
he says, by several capable interpreters of ancient vocabulary.
Matrona is any married woman, whether or not she has yet had
children; the assumption however is that she will have themmatrona, like matrimonium, is derived from mater. On the other
hand, Gellius says, materfamilias is properly used only of a woman
who has married with manus, and therefore has actually become a
member of her husband's familia.
This legalistic distinction has, however, little to do with the way
the words are actually used in our legal texts. Materfamilias and
matrona are sometimes used indistinguishably, to mean something
like "respectable woman." Ulpian (Dig. 50.16.46.1) expresses the
view that the word materfamilias ought to be reserved for decentliving women, whether they are married or widowed, freeborn or exslave, "for," he says, "it is not marriage or birth that makes a
materfamilias, but good behaviour [boni mores]."23
Both terms, matrona and materfamilias, clearly refer to the
procreative role of a woman in marriage. They appear in contexts
that make it clear that the valued role of women in this
patriarchically organised society was as actual or potential producers
of legitimate children. In the aedile's edict against sexual
harassment (Digest 47.10.15.15), the gravity of the offence was
measured by the offender's perception of the kind of women he was
accosting. If they appeared to be slaves or prostitutes, the offence
was less than if he approached virgines (i.e. young girls, as yet
unmarried) or women dressed as matresfamiliarum, which is glossed
as matronali habitu.
The key term, however, is paterfamilias. In contexts concerning
the legal relationship between two people, of whom one is in the
potestas of the other, the word is obviously used to denote someone
who has to be male. However, there are two very common types of
context in which the sex of the individual is not pertinent, and in
23 At Dig. 23.2.41 Marcellus remarks that he does not consider that a
woman who lives as the concubine of a man has the respectability
(honestas) of a materfamilias unless she is a freedwoman and he her patron,
and Ulpian expresses a similar view (Dig. 25.7.1 pr.): it is more honourable
for a patron to have a freedwoman as concubine than as a wife
(materfamilias). Children alleged to be wrongfully detained are to be
placed, pending legal judgment, in the care of a materfamilias, says Ulpian
(dig. 43.30.3.6), defining this as notae auctoritatis feminam, "a woman of
known (good) standing."
GENDER-ROLE ASSUMPTIONS IN ROMAN LAW
387
these we very often find paterfamilias being used in a way which is
not gender-dependent. The result, again, is to reduce the apparent
visibility of women.
One of these two types, already mentioned, consists of passages
in which the legal issue is merely whether the person concerned is
legally independent or still in potestate, i.e., "is he a paterfamilias or
a filiusfamilias?" Some of the situations envisaged would arise only
for men, but many could apply equally well to men and women. 24
In the other type of context, of which there are many examples,
paterfamilias means no more than property-owner. The role-model
property-owner, someone who is thrifty and saving and manages the
property carefully, is routinely described as bonus or diligens
paterfamilias-sometimes with the addition of words like studiosus
or honestus. 25 Specially frequent are passages about particular legal
considerations that may arise when a property-owner is disposing of
property by bequest-something which women as well as men were
legally able to do. 26 The use of paterfamilias obscures the reality that
women too could and did own, enjoy, manage and dispose of
property. Materfamilias would be inappropriate in such contexts,
since, as we have seen, that term is most commonly used with
connotations of women's biological role as wives and producers of
legitimate children; paterfamilias, however, where familia refers only
to property (Dig. 50.16.195.1), carries no biological implication.
Female is embraced by male and becomes invisible.
24 The following concern property in the possession of a soldier: Dig.
14.6.2, 35.2.40, 49.17.4.2. When Modestinus (Dig. 1.7.40 pro 1) observes
that, when a paterfamilias is adopted by adrogation, the children in his
potestas also come into the potestas of the adopter, whereas when a
filiusfamilias is adopted his children remain in the potestas of his natural
father, obviously paterfamilias is being used specifically of a male head of
familia. Equally applicable to both males and females, however, is, e.g.,
Dig. 36.2.15: Si ita esset liberis fideicommissum relictum, si morte patris sui
iuris essent effecti, nec mortalitate patris, sed emancipatione patres
familiarum constituti sint, deberi eis fideicommissum nemo dubitaverit
diemque eius emancipatione cessisse, qui morte patris cederet. ("If something
were left by trust to children in a will, on the condition that they became
independent on the death of their father, and they became
patresfamiliarum not by his mortality but by emancipation, no one would
doubt that the gift which would have been due at his death has become due
by emancipation.")
25 For example: Dig. 7.1.9.2; 7.8.15; 13.6.18; 18.1.35; 19.1.54, etc.
26 Examples are too numerous to cite. Obviously, one must exclude
those instances involving postumi or sui heredes, since only males could
have these and were required to institute or explicitly disinherit them in a
will.
388
JANE F. GARDNER
Besides these linguistic biasses, there are asymmetries, some
more evident than others, in the presentation of certain issues
concerning the legal relations between husband and wife. These
arise, at least in part, from a (conventionally accepted but, as we
observed at the beginning of this paper, legally based) hierarchical
conception of marriage. They can also obscure the extent of the wife's
contribution to the marital household. That is, the male role as head
of familia influences thinking about matters which are not primarily
to do with the familia.
As we saw, both terms, materfamilias and matrona, describe a
woman's standing in society at large, "married woman," as distinct
from uxor, the word used of her private situation as a wife. The
distinction between materfamilias and uxor is nicely illustrated in a
paragraph from the same title of the Digest as that concerning the
edict on sexual harassment. The offence, in both cases, is iniuria,
and it can be suffered, we are told, either directly, in one's own
person, or indirectly, at second hand, when it is done to certain
others. It is direct when done to a paterfamilias or a materfamilias
(that is, a male or female who is sui iuris); it is through others when
it is inflicted upon "my children or my slaves or my wife (uxor) or my
daughter-in-Iaw."27
The "me" referred to is the typical paterfamilias. The text
continues: "For an insult regards us when it is done in the case of
those who fall under [literally "are subject to"] our legal authority or
our affection [vel potestati nostrae vel affectui subiecti sint]." With the
last phrase, we move away from legality into the realm of social
assumptions. Slaves and children have no separate identity from the
pater in Roman law-they are, literally, "subject to his power"-and
he is the appropriate person to bring suit against the offender. His
wife and his daughter-in-law, however, although in classical Roman
society usually in separate familiae, are "bound to him by affection."
Someone who insults either a son in power, knowing him to be so, or
27 Dig. 47.10.1.3 (Ulpian lvi ad edictum): Item aut per semet ipsum alicui
fit iniuria aut per alias personas. per semet, cum directo ipsi cui patri
familias vel matri familias fit iniuria: per alias, cum per consequentias fit,
cum fit liberis meis vel servis meis, vel uxori nuruive: spectat enim ad nos
iniuria, quae in his fit qui vel potestati nostrae vel affectui subiecti sint.
("Likewise insult is done to someone either in his own person or through
others: in his own person, when the insult is committed directly against a
paterfamilias or materfamilias; through others when it is done
consequentially, when it is done to my children or my slaves, or wife or
daughter-in-law: for an insult regards us when it is done in the case of
those who fall under our legal authority or our affection.")
GENDER-ROLE ASSUMPTIONS IN ROMAN LAW
389
a woman, knowing her to be married, is held to intend an insult to
the father, or the husband, or both, as the case may be. 28 Both the
father and the husband, or, if the woman is not in power, the woman
herself and her husband, can bring a separate action and receive
separate damages. 29 She can do it for the direct insult she received
personally. The husband, however, is not suing on her behalf but on
his own. Even though a wife has legally a separate identity from her
husband, an insult to her is an insult to him and the familia he
represents, because her only acceptable social role is as the wife of a
head of familia and mother of its children.
Even the terminology of being unmarried reflects this difference of
social roles. Caelebs is the common word for unmarried men. In
Horace, Ovid and the elder Pliny, it is also the word applied to a tree
which is not fulfilling its normal role of supporting vines. A woman
without a man is vidua, that is, as the prefix vi- suggests, she is
lacking something. What she lacks is two-ness. 30 The normal
condition for a woman, it is assumed, is to be part of a couple. Vidua
is used both of widows and of divorcees. Despite the value attached
in certain religious contexts and, theoretically at least, in popular
morality to the univira, the woman wed once only, the normal
assumption and normal practice was that a woman whose marriage
ended would, at least until a fairly advanced age, go on to contract
another. A father's will quoted by Alfenus Varus says (Dig. 33.1.22):
"I order my heir to give my daughter 100 a year, as often as she is
28
29
Paul. Dig. 47.10.18.5.
Dig. 47.10.18.2; cf. Dig. 47.10.11.7, C. Justin. 9.35.2; Gardner 1993,
47.
30 Hor.
Carm. 2.15.4; Ov. Met. 14.663; Plin. Nat. 17.204; Dig.
50.16.242.3: 'Viduam" non solum eam, quae aliquando nupta fuisset, sed
eam quoque mulierem, quae virum non habuisset, appellari ait Labeo: quia
vidua sic dicta est quasi vecors, vesanus, qui sine corde aut sanitate esset:
similiter viduam dictam esse sine duitate. ("Labeo says vidua is used not
only of a woman formerly married, but also of one never married, because
the term vidua is like vecors, vesanus, of those lacking in mind [cor] or
soundness [sanitas]; similarly vidua is used of someone lacking two-ness
[duitas].")
Viduus is rarely used except in application to a woman. When Ov. Am.
3.5.42 says of the male lover, bereft of his woman, frigidus in viduo
destituere toro "you will be left cold on your widowed couch," this may
perhaps be taken as an instance of artificial assimilation of feminine
subjectivity, as similarly when Catullus teases Flavius that the state of his
bedroom shows he has not been spending viduas noctes. Seneca (Her. F.
245-6) uses both words of someone who is both a queen and a widow: Non
vicit illum caelibis semper tori regina gentis vidua Thermodontiae (the queen
of the Amazons was unwed [vidual and "of ever single bed").
390
JANE F. GARDNER
between marriages (quotiens vidua erit)." This is possibly a
theoretical example-but that remarriage was in practice common
and expected is shown by, e.g., the rules, from archaic times, about
prescribed length of mourning for widows before remarriage, and the
brief period of grace Augustan marriage laws allowed to the widowed
and divorced before they became liable to penalty. Labeo, a jurist
active under Augustus, is cited in two passages 31 about legal
problems concerning women who are married, then viduae, then
remarried. One of these (Dig. 24.1.64) reports a legal controversy
that arose as a result of legal advice given by Trebatius about the
case of Maecenas and his wife Terentia. If couples split up and came
together again, as those two did, then was it a remarriage, or had
they never really been divorced?
Social expectation, then, was that a woman would be unmarried
only in exceptional circumstances, and terminology suggests that
hers was thought of as the dependent role in the marriage; this may
be the rationale of the husband's right to sue for injury if she is
insulted.
A husband is allowed to sue for an insult to a wife; does the
converse hold true? No: because "it is right [aequum] that wives be
defended by husbands, not husbands by wives."32 Frier (1989) 198,
citing in a student textbook this judgment of the jurist Paul,
enquires "Is this just sexism?" It is not just sexism on Paul's part, for
it is in fact a judgment based on a legal rule; women had in Roman
law no right at all of civil action on behalf of another party33-this is
one of the areas of interaction between male patresfamiliae from
which they are excluded. In legal terms, a woman has no more right
to bring a civil case on her husband's behalf than on anyone else's.
Paul's gloss on this application of the ban, however, is sexist, as is
Ulpian's explanation of the ban itself.34 Women should not, says
31 Dig. 24.1.64, 24.3.66.5; see also Dig. 50.16.242.3 (above, n. 30). Dig.
24.3.66.5 appears to be a hypothetical example: a woman divorced and left
part of the dowry with her husband, then she married someone else, and
then remarried her first husband after becoming vidua a second time
(iterum vidua facta) and gave him a sum as dowry but did not mention the
amount left with him after the previous divorce. When (or "if') there was a
divorce, Labeo said the amount left from the previous dowry would also be
returned by the husband.
32 Dig. 47.10.2; cf. Inst. 4.4.2
33 Dig. 3.1.1.5; nor did women have a right of criminal action, except
for parents, children or patrons, and then only in extremis (Dig. 48.2.1, 2).
34 Dig. 3.1.1.5: Gardner 1993, 100ff.
GENDER-ROLE ASSUMPTIONS IN ROMAN LAW
391
Ulpian, meddle in the lawsuits of others, since that is contrary to the
proper modesty becoming their sex; besides, it is men's work.
A possible explanation for the ban, as for the rest of the
restrictions on Roman women's legal capacity, is that it resulted from
the historical development by which, at some time before our legal
sources begin, it was found necessary to provide some legal capacity
for independent women within a framework created for males in
total charge of property and kin-groups. The tutela mulierum 35 in its
origins was similarly an attempt to control women's ability to
dispose of property. Roman men brought these problems upon
themselves. In early Rome, the necessary introduction of women into
families by marriage for purposes of procreation was usually
accompanied by their legal transfer into the marital familia and into
the manus of their husbands. This meant that, unless her father
died before she could be married (for which the minimum legal age
was 12), a woman might not leave potestas at all until her husband
had died-by which time, as her husband was presumably usually
younger than her father, there was a good chance that she would
have died herself. While she was in potestas, she had no independent
power of legal action and was legally subordinate to control by her
husband, on a par with the children of the marriage.
The alternative of keeping women legally in their familia of origin
was available before our sources begin (since avoidance of manus
arising from usus is already provided for in the Twelve Tables: Gaius
1.111). It benefitted Roman men as fathers and brothers, since the
women would still be agnatically connected to their families of origin
when they left potestas, and so any property they acquired in their
own right would, in the early state of the law of inheritance,
eventually go back to their blood kin; but since they left potestas
sooner as daughters than they normally would as wives, adoption of
this alternative produced greater numbers of independent women
who somehow had to be accommodated within the existing legal
matrix. They are given a status which is a truncated version of the
pater, minus the all-important element of potestas over other freeborn
persons. Hence the fictitious familia of one person, constituted by the
legally independent Roman woman. 36
35 Gardner 1986, 147-153; 1993, 89-97.
36 In early Roman society, this independence was in practice extremely
limited. Even though the authority of the (initially agnate) tutor extended
only over property which was res mancipi, in early Rome this amounted to
virtually all the significant property there was; even a private
arrangement like marriage (for which the consent of the tutor was not
392
JANE F. GARDNER
This
legal
asymmetry encouraged
certain
hierarchical
assumptions about men and women, privileging the male in ways
which have nothing to do with strict law. Assumptions of
subordination are found even where legal equality exists.
This emerges particularly in relation to marriage, which is both
implicitly and explicitly presented hierarchically. The young wife
whose father is still alive is in potestas; in legal terms, she is not her
husband's equal (since the generally later marriage age for men
increased the likelihood of his being already legally independent).
The wife who already has her legal independence nevertheless does
not appear to be her husband's equal, because she is without any
legal authority within his familia. The only strictly legal
relationships between husband and wife are actively important in
the main only at the end of the marriage-that is, matters
concerning dowry, separate property and the right of the husband
(after Augustus) to charge his wife with adultery. The asymmetry of
the adultery law is regularly ascribed, by moderns, to a "double
standard" of morality, and perhaps it was thought of in that way by
the Romans themselves, but it is based on a legal asymmetry.
Marriage is not an institution of Roman law. It belongs to ius
naturale, which nature taught to all living creatures. From ius
naturale descends the conjunction of male and female (which, says
Ulpian, we call matrimonium), procreation and the rearing of
children. 37 Marriage creates a family; but in legal terms, it is a
private voluntary association of two distinct familiae. One consists of
the husband and children; the other is not really a familia in the
strict legal sense at all, since it consists only of the woman. Her
adultery, because of the biological implications, is an offence against
her husband's familia; her lover's adultery is defined as an offence
against another paterfamilias and his familia, not against his own
wife.
legally required) could be controlled by him, because of his authority over
the constitution of a dowry.
37 Dig. 1.1.1.3: Ius naturale est, quod natura omnia animalia docuit: nam
ius istud non humani generis proprium sed omnium animalium, quae in
terra, quae in mari nascuntur, avium quoque commune est. Hinc descendit
maris atque feminae coniunctio, quam nos matrimonium appellamus, hinc
liberum procreatio, hinc educatio. ("Natural law is what nature has taught
all animals; for this law is not peculiar to the human race but belongs to
all living creatures born on land or in the sea, and it is shared also by
birds. From it descends the union of male and female, which we call
matrimony, and the procreation and rearing of children.")
GENDER-ROLE ASSUMPTIONS IN ROMAN LAW
393
Most of the legal discussions to do with marriage are about the
ownership and disposal of the separate property belonging to
husband or wife, matters which arise at the end of a marriage, in
divorce or the death of one or the other partner. (Dowry property was
a special case, with its own rules). It is clear from the discussions
that in practice families in daily life treated things as common
property, but when the marriage ended there had to be a sorting out
and a settling Up.38
Where property is concerned, the legal capacity of Roman men and
Roman women is virtually the same (the tutela was not much of a
restraint by the end of the Republic, except possibly on some
freedwomen); nevertheless the way in which lawyers write about the
matter is influenced by a conception of marriage in which the
husband is seen as the provider for the entire household. This is
perhaps partly the effect of the practice of dowry, which is
understood, at least in theory, as intended to help the husband
sustain the "burdens of matrimony"; in addition, since as pater he
38 See especially the following well-known analysis of possible
permutations of ownership, in relation to provision for the clothing of
members of the household, at Dig. 24.1.29.1: Si vir uxori lanam donavit et
ex ea lana vestimenta sibi eonfeeit, uxoris esse vestimenta Labeo ait .... (31
pr.) Sed si vir lana sua vestimentum mulieri eonfeeerit, quam vis id uxori
eonfeetum fuerit et uxoris eura, tamen viri esse neque impedire, quod in ea re
uxor tamquam lanipendia fuerit et viri negotium proeurarit. (1) Si uxor lana
sua, operis aneillarum viri, vestimenta suo nomine eonfeeit muliebria, et
vestimenta mulieris esse et pro operis aneillarum viro praestare nihil debere:
sed viri nomine vestimenta eonfeeta virilia viri esse, ut is lanae uxori praestet
pretium: sed si non virilia vestimenta suo nomine mulier eonfeeit, sed ea viro
donavit, non valere donationem, eum ilia valeat, eum viri nomine eonfeeit:
nee umquam operas viri aneillarum aestimari eonvenit. ([29.1] "If a man
gave his wife wool and from that wool she made clothes for herself, Labeo
says the clothes belong to the wife.
[31 pr.] But if the husband from
his own wool had a garment made for his wife, even though it was made
for the wife, and she arranged its making, nevertheless it belongs to the
husband, and it makes no difference that in that matter the wife acted as
though she were the allocator of the wool [tamquam lanipendia fuerit] and
carried out the work on her husband's behalf. [1] If a wife, using her own
wool, and the work of her husband's slave-women, has women's clothes
made on her own account, then the clothes are hers and she does not owe
her husband anything for the work of the slaves; but if men's clothes are
made on behalf of the husband they belong to the husband, provided that
he pays his wife for the wool. But if the woman did not have men's clothes
made on her own behalf but gave them to her husband, it is not a valid
gift, although it is valid when she had them made on the husband's behalf.
And it is never appropriate to set a monetary value on the work of the
husband's slaves.")
See also Dig. 24.1.18 (below, n. 51).
394
JANE F. GARDNER
also has responsibility for his children, he tends to be assigned the
role of provider for the household in general, including his wife. Now,
this is very likely to have been true where the husband was an
artisan, small trader or peasant farmer, with a wife from a family of
correspondingly modest means and consequently able to make little
or no material contribution apart from whatever she may have
brought as dowry; but the families lawyers have in mind are those of
their typical clients, people whose womenfolk, like the men, own
productive farmlands, real estate, business enterprises, several
residences and so on. Nevertheless, the stereotype of the husband as
provider and householder of the family home persists. Where we are
explicitly shown a different picture is precisely in that title of the
Digest which deals with legal problems concerning the separateness
of the property of husband and wife (Dig. 24.1).
For the husband as provider, see, for instance, the various
definitions of penus, foodstuffs, when left as legacies. This was a
common form of legacy, for the technical reason that according to
Roman law every single item a person owned, even the contents of
the store cupboards, had to be calculated in the total value of his or
her testamentary estate, and if these were not left as a separate
legacy then the heir could empty the larder. Q. Mucius Scaevola
defined penus, according to Ulpian (Dig. 33.9.3 pr.), as "things for
eating and drinking"39; Sabinus' definition, Ulpian continues, is
"those of these things which have been procured for the paterfamilias,
his wife or children or the slave staff in attendance on them, or the
iumenta [beasts of burden and draught-animals] used by the
master." Ulpian adds (ibid. 6): "'Got for his use' will have to be
understood to include also for the use of his friends and clients and
everyone he has about him, but not also of the slave staff not in
direct attendance on him or his, such as those posted on the country
estates." Maintenance for staff other than immediate household staff
is excluded; the emphasis on use by the household is also, I think,
meant to exclude estate produce intended for sale (as discussed in
Dig. 32.60.2).40
39 Gellius (4.1.17) expands this: "Something for eating or drinking,
acquired for the sake of the paterfamilias himself [Hertz added aut matris
familias on the basis of dig. 33.9.3] or the children of the paterfamilias, or
his familia [i.e., his slaves; aut familiae was also added by Hertz], who are
in attendance on them or his children and opus non facit [i.e., the
household slaves, as distinct from those employed in some agricultural or
commercial enterprise]."
40 Dig. 33.9.3 pr.: Quintus Mucius scribit libro secundo iuris civilis penu
legata contineri, quae esui potuique sunt. idem Sabinus libris ad Vitellium
GENDER-ROLE ASSUMPTIONS IN ROMAN LAW
395
The paterfamilias is taken as the typical case. In fact, a wife's
estate was just as likely to include foodstuffs which she had
contributed to the household, whether from her own estates, or
perhaps from the stock of her retail business, whether foodstuffs or
the product of craft work,41 and the definition could obviously be
adapted to fit their legacies. The same applies to legacies of furniture
and furnishings, discussed in the next title of the Digest (33.10).
Women as well as men could own and bequeath these things. Again,
however, women as providers are rendered invisible; in the entire
discussion of legacies of these types, beneficiaries are seldom
mentioned. When they are, they are wives-once for penus (Dig.
33.9.1) and three times (Dig. 33.10.8,10,13) for supellex-and once
(Dig. 33.9.7) the testator's mother and his children. Women as
testators do not appear at all.
Again, a definition is provided by Sabinus (cited by Ulpian, Dig.
32.45) of what we are told is a frequent form of words in wills,
leaving to a wife as a legacy something "acquired for her use." There
was a reason for specifying particular legacies in this way. Since gifts
between husband and wife were invalid, items bought by a husband
remained his property, and would be lost to his widow unless he
confirmed the gift at his death. This restriction, however, was
symmetrical-gifts from wives to husbands were not valid either,
and would have to be confirmed in the same way, and for the same
reason. Lawyers make it clear that the items they are talking about
are not necessarily those conventionally regarded as "women's
things"42; nevertheless, it is the husband, rather than the wife, who
is spoken of as making the provision. The list of examples in the
Digest chapter on "gifts between husband and wife" (24.1) is less
one-sided, as one would expect, since this concerns only wives who
already were legally independent and in control of property; even
scribit. quae harum, inquit, patris familiae uxoris liberorumve eius vel
familiae, quae circa eos esse solet, item iumentorum, quae dominici usus
causa parata sunt . . . . 6. Sed quod diximus "usus sui gratia paratum"
accipiendum erit et amicorum eius et clientium et universorum, quos circa se
habet, non etiam eius familiae, quam neque circa se neque circa suos habet:
puta si qui sunt in villis deputati; Gel. 4.1.17: Penus est, inquit [sc. Q.
Mucius Scaevola], quod esculentum aut posculentum est, quod ipsius
patrisfamilias <aut matrisfamilias> aut liberum patrisfamilias <aut familiae>
eius, quae circum eum aut liberos eius est et opus non facit, causa paratum
est.
41 Epigraphic references to craftswomen and tradeswomen at Rome are
conveniently listed in Evans 1991, 210-212.
42 Dig. 32.45, 49, 60; 34.2.10 pro
396
JANE F. GARDNER
there, though, husbands tend to predominate as the hypothetical
donors.
This habit of describing legal transactions as those of a
paterfamilias was natural enough in early Rome where manus was
the rule rather than the exception and divorce uncommon; few
women other than widows were out of potestas, and therefore they
had no property in their own right. Unfortunately, the habit stuck,
and evidently the Romans did not feel themselves under any
pressure to say carefully "his or her," "she or he" all the time.
One has the uncomfortable impression, from more than one type
of legal context, that this habit of asymmetrical expression led in
practice (specially when underpinned by established social attitudes)
to asymmetry in the treatment of the sexes in legal interpretation, as
well as in social expectation. Legal and social stereotypes interact.
The best-known manifestation is the moralist Valerius Maximus'
outburst about the outrageousness of women appearing personally to
plead in court (as they were perfectly entitled to do), which finds a
remote echo in Ulpian 43 ; but there are other instances of prejudicial
legal interpretation deserving comment, which appear in relation to
the conventional roles of husband and wife within the marital
household.
First is the praesumptio Muciana,44 named after Q. Mucius
Scaevola, by which a certain practice which had been regular in
lawcourts passed into law. Unless a widow was able to provide proof
of where she obtained any property claimed as hers, it would be
presumed that it came from her husband-this, Mucius reportedly
said, would be truer and more honourable (Pomponius interprets
this as meaning that Mucius wanted to spare the widow's
reputation). The original idea may have been to benefit widows by
putting as generous an interpretation as possible on legacies left to
them by their husbands in general terms like "whatever I gave my
wife" or "whatever my wife had from me." The praesumptio would be
43 V. Max. 8.3.2; Dig. 3.1.1.5; Gardner 1986, 262-263, 1993, 101.
44 Pompon. Dig. 24.1.51: Quintus Mucius ait, cum in controversiam venit,
unde ad mulierem quid pervenerit, et verius et honestius est quod non
demonstratur unde habeat existimari a viro aut qui in potestate eius esset ad
eam pervenisse. evitandi autem turpis quaestus gratia circa uxorem hoc
videtur Quintus Mucius probasse. ("Quintus Mucius said, when dispute arises
as to the source from which something came to a woman, it is both more
true and more honourable that something whose origin is not shown should
be considered to have come to her from her husband or someone in his
power. Quintus Mucius appears to have approved this in order to avoid
unseemly inquiry in relation to a wife."); see also Astolfi 1969, 269.
GENDER-ROLE ASSUMPTIONS IN ROMAN LAW
397
brought into play if the heir and the widow disagreed about what
she was entitled to keep. It has been suggested 45 that it was
originally meant to apply only to wives married with manus-who, of
course, would have no property of their own and no other means, in
law, of acquiring any-hence, presumably, Mucius' comment.
However, there is no proof of this, and in Roman law it is applied to
all wives. Already by Mucius' time many wives were married without
manus.
The implications for a married woman who was sui iuris and
could acquire property in her own right in a variety of perfectly
respectable ways were hardly complimentary. Mucius probably
meant no harm, but he did many women in later ages a disservice,
because the praesumptio named after him ultimately gave rise to the
doctrine of European common law that all acquisitions of a wife
during marriage belonged to her husband 46 ; this was not superseded
in English law until the late nineteenth century. In practice, it meant
not only that Roman women sui iuris would be well advised to keep
careful accounts and receipts, but that they could find themselves
having to submit to a kind of audit if the heir to the husband's
estate chose to be awkward. There was no such praesumptio
concerning gifts from a wife to a husband.
The single text we have on the praesumptio is part of the Digest
chapter concerning the consequences of the legal rule that gifts
between husband and wife were invalid. I have already pointed out
the tendency of lawyers to represent the paterfamilias as typically
the provider for the marital household, overlooking the wife's
contribution. There is also commonly an assumption that the marital
home is the husband's. Jurists dated the beginning of a marriage
from the wife's moving into the husband's house, not vice versa. So a
man could marry a woman in his absence, and by proxy, but she
could not marry him in this way, because she had to move into his
house, and, as it were, wait for him to start the cohabitationY When
Kaser 1971, 332
Schulz 1951, 131
47 Dig. 23.2.5: Mulierem absenti per litteras eius vel per nuntium posse
nubere placet, si in domum eius deduceretur: eam vero quae abesset ex litteris
vel nuntio suo duci a marito non posse: deductione enim opus esse in mariti,
non in uxoris domum, quasi in domicilium matrimonii. ("It is agreed that a
woman can be married to a man in his absence through a letter or message
from him if she was conducted to his house; a woman who was absent,
however, cannot be married by a husband in accordance with a letter or
message from her; there must be a conducting into the husband's house,
not into the wife's, as though into the matrimonial dwelling.")
45
46
398
JANE F. GARDNER
there is a divorce, the wife is the one usually assumed to be moving
out. 48 If a divorcing couple were unable to settle arguments about the
ownership of household goods and the wife took some away from the
house, her ex-husband could sue (actio rerum amotarum: Dig. 25.2).
Although in later classical law49 this actio is said to be available to
both husband and wife, it was primarily against the wife, and
virtually all the discussion assumes that the defendant is the wife.
According to Ulpian, it was the custom in his day, at least at Rome,so
for a wife to give her husband an inventory of personal property
which she brought into his house-to avoid, he says, an argument
about ownership if there should be a separation. Lawyers were well
aware that both husbands and wives might own houses, and that
they might live together in a house belonging to either of them 51; their
48 Similarly if the marriage ends in one spouse's death. In Dig. 33.10.13
a widow is perhaps faced with eviction: Numquam ex eo, quod supellectilem
legavit maritus testamento, habitationem, in qua supellex fuit, legasse
videtur. quare contra defuncti voluntatem habitationem sibi mulierem
vindicare procul dubio est. ("Never does it appear from the fact that a
husband has left a legacy of furnishings in a will that he made the house in
which the furniture was a legacy. Therefore it is far from doubt that the
woman is going against the wishes of the deceased in laying claim to the
house for herself.")
49 Ulpian, in Dig. 25.2.7, 11 pro
so Dig. 23.3.9.3: Plane si rerum libellus marito detur, ut Romae volgo
fieri videmus (nam mulier res, quas solet in usu habere in domo mariti, neque
in dotem dat, in libellum solet conferre eumque libellum marito offerre, ut is
subscribat, quasi res acceperit, et velut chirographum eius uxor retinet res
quae libello continentur in domum eius se intulisse): hae igitur res an mariti
fiant, videamus. et non puto, non quod non ei traduntur (quid enim interest,
inferantur volente eo in domum eius an ei tradantur?), sed quia non puto hoc
agi inter virum et uxorem, ut dominium ad eum transferatur, sed magis ut
certum sit in domum eius illata, ne, si quandoque separatio fiat, negetur.
("Clearly, if an inventory of goods is given to the husband, as we see
commonly done at Rome (for it is usual for a woman to make an inventory
of those things which she customarily has in use in her husband's house and
does not give for a dowry, and to offer this inventory to her husband for
him to sign as having received them, and the wife keeps this receipt as
evidence that she brought the things listed into the house), let us see,
then, whether these things become the husband's property. I think not, not
on the grounds that they are not handed over to him (for what difference
does it make whether they are brought into the house with his consent, or
handed over to him?), but because I do not think that the transaction
between husband and wife is intended as a transfer of ownership, but
rather to establish that the goods were brought into his house, in case, if
there should ever be a separation, this should be denied.")
GENDER-ROLE ASSUMPTIONS IN ROMAN LAW
399
model of marriage and divorce, however, was of a pater taking a
woman into his domus or expelling her from it (or her leaving it).
In early Rome, women would as a matter of course move into the
husband's home, since they themselves would go straight from a
father's potestas into the manus of a husband, without the
opportunity to own houses or any other kind of property, and in
classical Rome the likelihood is that many women, for their first
marriage at least, would in fact be moving in with their husbands,
since they themselves would still be in potestas. This, however, was
by no means universal, even for first marriages. Cicero's daughter
went through three marriages and died a filiafamilias, but his
youthful second wife, Publilia, was already sui iuris and very rich.
For second and later marriages the likelihood was greater still that
the bride would already be sui iuris and owner of property in her own
right; nevertheless, for lawyers, the marital home is typically the
domus of the paterfamilias, not that of his wife.
To sum up, the presentation of women in Roman law, particularly
in Roman family law, gives a misleading impression both of their
actual legal capacity, which was considerable and in many areas of
private law equal to that of men, and of the roles which they fulfil
within the family and in Roman social and economic life at large.
One reason is linguistic. Masculine terminology is regularly used to
describe situations which might concern either men or women. One
reason for the habit was no doubt convenience, but of greater
importance was the more central and visible role of men in areas of
political legal activity from which women were largely excluded, as
well as the central importance in Roman law of the familia headed
by a male. The effect of this linguistic habit is to marginalise women
still further.
The other, and primary, reason, is the predominant role played by
the paterfamilias and the familia in Roman private law. There is no
corresponding legal role for women within the familia, merely a
biological one. Since Roman family law is constructed in terms of the
familia and the paterfamilias, the result is that the social and
economic role of the wife and mother is obscured or neglected. Even in
matters where there is legal equality between husband and wife, the
woman is regularly assigned to a role of subordinate, dependent or
51 Dig. 24.1.18: Si vir uxoris aut uxor viri servis aut vestimentis usus vel
usa fuerit vel in aedibus eius gratis habitaverit, valet donatio. ("If a husband
has used slaves or clothing belonging to a wife or vice versa, or either has
lived in the other's house free of charge, that is a valid gift.")
400
JANE F. GARDNER
outsider. The gender role of the man as paterfamilias determines the
construction of other, implicitly assumed, gender roles.
DEPARTMENT OF CLASSICS
UNIVERSITY OF READING
READING, ENGLAND R6G 2AA
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