The Position of Women in Roman Law

In order to understand the full implications of what it meant to be a woman in Ancient Rome, one must be aware that the foundation of archaic society, and therefore its legal unit, was the family.

The origin of women’s political and legal inferiority can be traced back to man’s religious, rather than physical, superiority. During the times spoken of, the family dynamic was centred thoroughly on the father, the pater familias. This three generational domestic establishment held the eldest male figure as head of the family, which consisted of the married sons with their children. In the eye of the law he was sui juris (also written as sui iuris) hence legally competent to manage his own affairs. The other members of the family were portrayed as alieni juris because they rested upon the protection of the pater familias. They were seen merely as the property of the pater familias. Contrastingly, the father of the family had legal and patrimonial strength. This tradition, mos maiorum, which gave autocratic power (patria potestas) to the pater familias over his extended family, was in fact born within religious rituals.

Their beliefs go back to the Aryans, a civilisation which worshipped the dead in return for protection. Romans on the other hand, although also connected to the notion of death, worshipped the fire. The latter was initially practised distinctively, yet came to form part of the same religion. Upon the altar of Roman families ignited an undying flame, a symbol of the ancestral gods, which was believed to safeguard the family. Ceremonies, of which the father was the high-priest, were unique to every household. Women however, had no autonomy as far as rites upon the altar were concerned, and thus could only partake in services through their fathers or spouses. Furthermore, unlike the men, the female gender could not reach divinity when they passed away and their identity would vanish in that of their male family members. From the father’s authority in worship came his supremacy over the other relatives.

Patria potestas constitutes the absolute dominance of the father over his own children of both sexes (filiifamilias and filiaefamilias) and his children’s children, including the right to sell or kill them. This power could be ceased by emancipation or upon the death of the father, only by the son. Public law, however, seems to disregard the patria potestas over male children, as they were not only authorised to hold a position in government, but also to adjudicate and penalise their father’s wrongdoings. In this section of the law women were completely irrelevant. They were liable for their offenses to the pater familias, and convicted in accordance to the family’s exclusive jurisdiction. Passages from Paul’s Digest state that ‘by custom – women and slaves, not because they do not have judgement, but because it is received practice (receptium est) that they do not perform civil functions’ (5.1.12.2), ‘civil duties are taken out of the sphere of women and are for most part not valid by the operation of law’ (16.1.1). Women’s legal insignificance is highlighted in the latter extracts, where it is concluded that they were ineligible as witnesses in court and could not write wills. Only a woman who was freeborn or freed, and thus had individual competence, had the right to conduct agreements legally and to own and sell property. Despite this, it was still impossible for her to ever be regarded as the ‘head of the household’.

As regards to private rights, daughters would only enjoy an equal share of their father’s legacy with their brothers if they were still unmarried. Primary importance was given to the father’s consent in marriage in early Roman times, since his grandchildren would also fall under his pater potestas. Customarily, the daughter marries herself out of her blood family into her husband’s pater familias, this being either the spouse himself or his father. Although Roman Law supposed that the bride’s consent was also necessary for a marriage to be valid, hers was an ostensible say in the face of the father’s authority over his daughter. Nonetheless, these seemingly mere changes in the law ultimately contributed greatly to women’s fight for equality in the later years.

Marriage was essentially the transfer of power from one master to another. In the times spoken of, husbands had unrestricted authority over their women and could thus treat them as they would a slave. However, various rulers sought to limit such dominance in order to avoid exploitation. Laws against the selling of a wife were enacted, nonsensical divorces punished with property confiscations and the unjustified killing of the woman forbidden. Having said that, a husband could kill his wife for infidelity or wine-drinking, while she, as seen in an excerpt of Cato the Censor, ‘would not dare to lay a finger upon [him], and indeed she [had] no right.’

As early as at the age of seven, a girl could be betrothed. The manus system, a marriage sanctioned by law, was an extension to the power of the pater familias. This was divided into two forms: cum manu and sine manu. The sine manu comprised of the father persisting as legal guardian, and upon his death, independence was gained. Here some form of autonomy was also present while the father was still alive, as, although the daughter remained under his legal responsibility, this was done from afar, and the spouse had no authority over her. In a cum manu marriage, on the other hand, the powers the pater familias possessed over the daughter were passed to the husband, and she was subsequently treated as if she was born in his family’s potestas. When the pater familias died, patrimony was shared amongst her and her children equally, but she did not thereafter inherit from her biological father. Furthermore, a marriage of this kind constituted the transfer of all property ownership to the husband, leaving the wife with no proprietary capacity. In fact, even after divorce, her earlier possessions could not be retrieved.

The cum manu could occur in three ways; confarreatio, coemptio and usus. The first-mentioned was a religion-based union for the aristocrats alone. In the presence of ten witnesses, the spouses recited sacred verses and shared bread made of farreus. This system was perhaps the one allowing women the most freedom, as they were only required to be submissive during rituals in exchange for everyday autonomy. A cum manu acquired by coemptio was described by Gaius as ‘an imaginary sale’. However, the word ‘imaginary’ might be considered to be misused, since it was in essence, as Marcia L. Colish defined it, ‘a notional sale of the woman to the husband’. The usus enabled the husband to gain marital powers following a year of cohabitation, after which he legitimately became her owner. This was regarded as rendering the woman as no better than an object, and thus, the Twelve Tables, gave her permission to overthrow the usus by absenting herself from the house for three consecutive nights each year. The slight recognition of such inequity and the consequential changes to long-lasting traditions display women’s progressive improvement in Roman Law.