Chapter 32

Wom en a n d Patr i a rch y

i n Rom a n L aw
Eva Cantarella

32.1 Introduction

During the long centuries between the date of the mythical founding of Rome (753 bc)
and the first decades of the sixth century ad, when Justinian’s Corpus Iuris Civilis was
enacted, the legal condition of women underwent substantial transformation.1 In order to
understand this process, it is necessary to recall that during the first centuries of its history
Rome was a quintessentially patriarchal society (Inst.Gai.1.55: Fere nulli alii sunt homines
qui talem in filios suos potestatem habent qualem nos habemus), where only patres familias
(i.e. male citizens who were the head of a family) enjoyed full civil and political rights.
The other members of the family enjoyed only certain rights, and some did not enjoy any
at all. The Roman familia was very different from the one we define as a family today.2
According to the jurist Ulpian (third century ad) (D.50.16.195.1–2) familia was a group of
persons subjected to the authority of the head of the family natura aut iure, that is both
by virtue of “nature” (natura) and “law” (iure). The persons subjected to the pater familias
“by nature” were his children (male and female) and the descendants of male children;
the persons subjected “by law” were his wife, the wives of his male descendants, and his
slaves. The power of the pater familias, originally supposedly called mancipium, in histori-
cal times came to be called patria potestas over children, manus over wives and dominica
potestas over slaves. According to this description of the family, Roman law defined as sui
iuris (“of his own right”), only the pater familias. All the others (descendants and wives in
manu: see later) were considered alieni iuris (“of another person’s right”). Over the cen-
turies paternal authority underwent important changes, which in different ways limited
it. Both the status of slaves and of free persons (daughters or wives) changed. Rome had
grown from a small village of peasants and shepherds to a metropolis that ruled the world.

1
Cf. Pomeroy 1975; Gardner 1986; Cantarella 1993; Thomas 1997, 103–176; Cantarella 2006.
2
Cf. Dixon, ch. 35. A useful and brief survey of the scholarship in English is in Garnsey and
Saller 2014, 170–171. On the need of integration with European scholarship see McClintock 2009;
Capogrossi Colognesi 2010 and Cantarella 2014.
420 The Oxford Handbook of Roman Law and Society

Political, social and economic conditions (not to say mentalities and religious beliefs and
practices) changed the way of thinking of the Romans, their way of life and their attitude
and behaviour towards women. For these reasons, we will divide the following exposition
into two periods: the Monarchy and the Republic; the Principate and the Empire.

32.2 The Monarchy and the Republic

Any discussion of this topic must start with slave women. Considered by the law not as
persons but as property of their owner (exactly as male slaves) they were bound to work
in the house and for the family, grinding grain and cultivating the fields. Their duties
also included being sexually available to the male members of the family. They did not
have the possibility to form sentimental relations and to build a family of their own. If a
female slave formed a relationship with a man (a slave, as well), this relationship (called
contubernium) could be interrupted by the master, who could sell one or both of them to
different buyers. The children born from a contubernium belonged, as slaves, to the owner
of the slave woman. The best indication of female slaves’ legal condition is a question that
divided the jurists: is the child of a female slave to be considered fructus (fruit)? Roman
law provided that the term “ fructus” not only meant natural fruits but all the autonomous
products of a thing or animals, such as wood, wool, milk and so on. As a rule, they be-
longed to the owner of the “mother-thing”. But if the thing had been given in usufruct,
they belonged to the holder of the usufruct. Let us return to the female slave, who, as an
object, could be given in usufruct: what if she gave birth to a child during this period?
According to the law the child belonged to the holder of the usufruct, but children of a
slave were “fruits” too valuable to the owner of the “mother-thing” to be lost. For this
reason, in the interest of the owners of slaves, in the second century bc the jurist Brutus
decided that the children of a slave were not to be classified legally as fruit (D.7.1.68pr). But
his opinion was so controversial that the debate was still mentioned by the jurist Gaius
(Inst.Gai.2.50; D.22.1.28) in the second century ad.3
What about women who were free? Even if their position could not be compared to that
of female slaves, their subjection to the pater familias was extensive. At birth, if accepted
by the pater familias within the family, they fell under his patria potestas. If the father did
not accept the newborn he could expose it to the elements. The ceremony of acceptance
depended on the sex of the baby: the male new born was deposited at the feet of the pater,
who, in case and as sign of acceptance raised it in his arms, in a solemn gesture called
tollere or suscipere liberos (to raise children). If it was a female the rite was reduced to the
order to feed the baby (alere iubere). The symbolic value of the different forms of accept-
ance reserved to female and to male deserves reflection.
Patria potestas also included the right of killing (ius vitae ac necis: Dion. Hal. Ant. Rom.
2.26–27).4 A woman whose sexual behaviour had been deemed reproachable could be put

3
Cantarella 1993.
4
The extent of the powers of the pater familias still gives rise to great discussion. See Saller 1987,
22–34; Saller 1994. More recently see the history of scholarship sketched by Capogrossi Colognesi
2010, 147–174.
 Women and Patriarchy in Roman Law 421

to death. Fathers who did not exercise this right could oblige the daughter to abort her
child; or, they could expose it at birth should they choose to do so. They had the right to
decide when and to whom the daughter had to be given in marriage. Usually a Roman
woman was betrothed when she was between eight and ten years old in a solemn ceremony
called sponsalia. On that occasion she was given a ring to put on the fourth finger of her
left hand, from where the Romans believed a nerve originated that stretched to the heart.
From that moment she was a sponsa and was bound to fidelity to her future husband.
Marriage was celebrated when she reached majority, at 12, and upon celebration she left
her original family and joined the family of her husband.
The most ancient nuptial rite was confarreatio, a solemn religious ceremony which
took its name from a panis farreus, a loaf of spelt (farrus) that the bride and the groom
had to share as a symbol of the beginning of their common life. It consisted of a solemn
sacrifice to Jupiter before the Pontifex Maximus, the Flamen Dialis (one of the most im-
portant priests) and ten witnesses. It was reserved for patricians, and according to Gaius
(Inst.Gai.1.112) in the second century ad was still in use for the marriage of the Flamen
Dialis. Much more widespread was coemptio (perhaps in origin reserved for plebeians),
an application of the old form of sale and purchase (called mancipatio), in the course
of which the object was sold to the buyer in the presence of a libripens; that is to say, a
person who held a scale on which the buyer had placed the price of the object. Even if in
the case of coemptio the price of the bride was symbolic, it is highly likely that originally
the wife was bought in reality, as suggested also by the fact that in the second century
ad Gaius (Inst.Gai.1.113) writes that during coemptio the husband “buys the woman”
(emit mulierem). A further element to support this hypothesis consists of a unique in-
stitution called usus. In Roman law ownership could be acquired by usucapio, i.e. the
use of an object for a certain period of time, indicated by the XII Tables as one year for
movable goods and two years for immovable ones (XII Tab. 6.3 [FIRA], apud Cic. Top.
4.23). Usus was usucapio of a woman in cases where coemptio had not been celebrated
or had been technically unsuccessful (e.g. for an error in the ritual words that had to
be pronounced). As a consequence of usus the wife, after one year of cohabitation (the
same term employed for movable goods) joined the family of the husband, who acquired
manus over her (see later), and by virtue of this power obtained the right to put her to
death for adultery and for drinking wine (Dion. Hal. Ant. Rom. 2.25.6). Finally we must
recall that upon marriage women were given a dowry, i.e. a certain amount of goods
(ownership of which belonged to the husband) that compensated them for the loss of
inheritance within the group of origin, and represented a contribution to their life in
the new one.
The disciplinary power of the husband over the wife included the power to put her to
death in case of adultery (Dion. Hal. Ant. Rom. 2.25.6). Some centuries later, Cato com-
mented on this law: “if you [i.e. the husband] catch your wife in adultery, you can kill her;
if she catches you, she cannot even touch you with a finger” (Gell. NA 10.23.5). According
to the same law, the husband could kill the wife also when she had been caught drinking
wine (prohibited to women in the first centuries of the city). A further law, supposedly
enacted by Romulus, stated that a marriage could be interrupted (apart from the case of
death of one of the spouses) only by the husband (Plut. Rom. 22). The husband could repu-
diate his wife without paying any penalties in three cases: if she had committed adultery,
if she had taken the keys of the cellar (where wine was kept) and if she had aborted her
422 The Oxford Handbook of Roman Law and Society

child without his consent (Plut. Rom. 22.3). If none of these reasons existed he had to pay
a pecuniary penalty.
In 450 bc the XII Tables confirmed these rules. Perhaps following that code, perhaps
later, in case of divorce the husband pronounced the famous order directed to his wife:
“take back your things” (tuas res tibi habeto), “res” here meaning the wife’s personal
belongings such as dresses and jewels (Plaut. Amph. 3.2.47, Trin. 2.1.49; Cic. Phil. 2.69).
Originally, these words were only a social custom and did not have legal effect. Of course,
if the husband was still subject to patria potestas, the power to interrupt the marriage
belonged to his pater familias.
Women’s economic rights, in the first century of Rome, were in some way contradic-
tory: they were able to possess a patrimony, but they were in part excluded from the pos-
sibility to acquire it, and even when they could acquire it they could not freely dispose of
it (XII Tab. 5.2 [FIRA], apud Inst.Gai.2.47).
The most ancient form of testament (testamentum calatis comitiis) was celebrated before
the comitia curiata, where women were not allowed. Thus, originally women could not
make a will nor could they be nominated as heirs. During the third and second centuries
bc, however, a new form of testament was introduced that eventually replaced the old one.
It was called testamentum per aes et libram and was available to women (both as testators
and as heirs).5 Since the time of XII Tables, in the absence of testamentary dispositions
(which in Roman law took precedence on intestate succession), the order of successors was
the following. The first line of heirs were the sui (sons and descendants in the male line
who, at the death of the pater familias, became sui iuris). In the absence of sui the patri-
mony passed to the adgnati proximi, the nearest collateral relatives in the male line (XII
Tab. 5.4 [FIRA]). Women were included both in the category of sui and of adgnati: they
formed part of the category of sui as daughters, as daughters of a deceased son of the de
cuius, and as wives in manu (given the fact that according to the law wives in manu were
loco filiae; that is to say, “as daughters” of their husband); they were also included in the
category of adgnatae in relation to their paternal uncle, if their father had died.
As far as intestate succession was concerned, therefore, women enjoyed inheritance
rights as men. Given the extent of the discrimination that they suffered in other fields of
the law, scholars have discussed the possible origin of this rule at length. In light of the
composition of the original Roman population, was it, perhaps, an influence of the Sabine
civilisation? Or was it due to the influence of the Etruscan period of domination? Etruscan
influence is usually considered the most probable explanation, but even if so, it was altered
by the Roman idea that women had to be subject to male power. To achieve this aim, the
Romans set a rule that in fact, for some centuries, nullified women’s legal capacity in this
field. This rule imposed the guardianship of a tutor (guardian) on women sui iuris (who
did not have a male having patria potestas or manus over them) (XII Tab. 5.1 [FIRA], apud
Inst.Gai.1.144–145; Inst.Gai.1.190).
Guardians were persons (usually the nearest relative in the male line) in charge of sui
iuris individuals who had the capacity to be holders of rights (legal capacity), but not the
capacity to exercise them (capacity to act), because they were considered incapable of un-
derstanding and of free will. According to the XII Tables these persons were: 1) women for

5
Peppe 1984, 55–62.
 Women and Patriarchy in Roman Law 423

their entire lives; 2) men up to fourteen years old (when, upon reaching puberty, they were
considered “capable”). According to the XII Tables, at the basis of this was the belief that
women “because of the frivolity of their spirit” (propter levitatem animi: according to one
reconstruction of XII Tab. 5.1 [FIRA]) were never capable of taking care of themselves. As
a consequence they could not dispose of their patrimony, neither inter vivos nor mortis
causa, without the authorisation of a person (the guardian), usually a relative who at their
death would be their heir. Soon enough, however, women found legal ways to circumvent
the guardianship of a tutor (see section 32.3).
How did women react to their status? During the first centuries of the Republic a series
of events showed a certain tension in the relation between sexes. In 331 bc a number of im-
portant persons died mysteriously and many matronae were tried for poisoning: venena
(poisons) had been found in the houses of some of them. The women pleaded not guilty:
they claimed that the venena were venena bona (medicaments), and when challenged to
drink the liquids they accepted, but died as a result. The trial ended with 160 women
condemned (Val. Max. 2.5.3; Liv. 8.18). In 215 bc, in a politically and economically difficult
moment, a lex Oppia6 (Val. Max. 9.1.3; Liv. 34.1.3; Tac. Ann. 3.33–34; Gell. NA 10.23 and 17.6;
Oros. 4.20.14; Zonar. 9.17.1) forbade women from wearing excessively coloured clothing
and an excessive quantity of jewels (Liv. 34.1.3). Women’s discontent was such that twenty
years later, in 195, a great number of them invaded the streets, calling for the cancellation
of the law. For Cato, such behaviour was beyond belief and so dangerous as to be unac-
ceptable: we cannot surrender to women’s will, he said, “as soon as they will start to be
equal to us, they will be [our] superiors” (Liv. 34.3.2). But the two magistrates in charge of
the question defended the women’s position and the law was cancelled. In the same years,
however, a further unjust law for women was passed. In 169 bc, the lex Voconia (Cic. Rep.
3.17; Inst.Gai.2.226 and 2.274) established that women could not be instituted as heirs of
citizens who had a patrimony larger than 100,000 asses and that a legacy to them could
not exceed half of the estate.7 This meant, combining the two provisions, that women
could receive at most half of the inheritance of a citizen of the first class. Needless to say,
Cato was in favour of the law. In his opinion women, when rich, became independent and
arrogant (Gell. NA 17.6). Finally, some ten years later a further disquieting episode hap-
pened. Between 184 and 180 a strange epidemic caused many deaths, and a great number
of women were accused and sentenced to death (Liv. 40.37.4–5).
However one interprets these disturbing episodes, they indicate the definite existence of
a tension between genders. What were the reasons for this situation? Let us consider wom-
en’s social role. Given their indispensability in order to reproduce families and citizens,
women who accepted that role, behaving as perfect wives and mothers, were accorded
great formal respect and social esteem. Some were celebrated as examples of behaviour.
The legendary case of Lucretia, wife of Collatinus, raped by Sextus, son of Tarquinius
Superbus, last king of Rome (Cic. Fin. 2.20.66; Val. Max. 6.1.1; Liv. 1.58.5–1.59.3; Ov. Fast.
2.685–856; Dion. Hal. Ant. Rom. 4.66–77; August. De civ. D. 1.19) is a case in point. Though
innocent, Lucretia decided to commit suicide, asking her father and her husband to avenge
her. Their attempt to convince her to abandon her purpose was useless: she had to die, she

6
Desideri 1984, 63–73.
7
For a new reading of lex Voconia see McClintock 2013, 183–200ff.
424 The Oxford Handbook of Roman Law and Society

said, in order to prevent other women from enduring a similar fate. Such was the intoler-
ability of the offence to a woman who symbolised all the feminine virtues, according to
legend, that the people rose against the foreign kings and Rome became a Republic.
Many exempla that celebrated women of that kind can be found. Exempla were stories
repeated as instruction to Roman citizens, which played an important role as a means to
persuade and induce them to respect Roman virtues. But if a person did not behave ac-
cording to the exempla, a strong social penalty in the form of shame befell this person. If
a woman was less perfect than Lucretia or any other women of that kind, if her behaviour
engendered suspicion, social blame was as strong and effective as the celebration of the
perfect matronae, as demonstrated by the famous case of Clodia, the woman deeply loved
and celebrated under the name of Lesbia by Catullus.8 Clodia lived in the first century bc
when the condition of women had changed profoundly (as we will see) and women, or at
least some of them, had emancipated themselves. She was a young and beautiful woman
who refused to play the role of desperate widow dictated by tradition. She had a passionate
love affair with Catullus, younger than her (a quite unusual thing at the time), and left him
for Caelius (even younger than Catullus). According to Cicero, who defended Caelius in
a trial that pitted the two ex-lovers against one another (Cic. Cael. 3–31; Plut. Cic. 29), she
had to be considered as a prostitute of the lowest level.

32.3 From Augustus to Justinian

In the age of Augustus, women’s lives were incomparably different from that of the first
centuries. Modern scholarship has therefore described it as their “emancipation”.9 As is
well known, many caveats are necessary when applying a modern term to an ancient situ-
ation. Nonetheless, in this case the level of personal and economic freedom achieved by
the female part of the population really seems to justify the use of the word.
In order to understand the circumstances that allowed such a legal and cultural evolu-
tion it is necessary to start by examining the new legal rules. Originally the only kinship
recognised by law was kinship in the male line (adgnatio). The law did not even recognise
the relation between mother and her children. At the end of the Republic these principles
began to change, and women started to be considered capable of obtaining custody of
their children if the magistrate in charge of it (the praetor) acknowledged the shameful
conduct of the father. At the time of Ulpian (third century ad) it was stated that children
had to respect their father and their mother equally (D.37.15.1). Under Hadrian, the senatus
consultum Tertullianum established that a mother of three children was granted the ius
trium liberorum; that is to say; she was exempt from guardianship and could inherit from
her offspring, albeit after the children’s children, their father and certain adgnati (D.38.17).
In 178 ad a senatus consultum Orfitianum established that children could inherit from
their mother ahead of her brother and other adgnati (D.38.17; Inst.3.4; C.6.56–57). Finally,
under Justinian a mother could inherit from her children even without the ius liberorum
(C.3.3 and 4).

8
Cantarella 2006, 113–126. 9
Vigneron and Gerkens 2000, 107–121.
 Women and Patriarchy in Roman Law 425

The institution that underwent the biggest transformation was marriage. Over time,
the transfer of the wife to the husband’s family was considered with increasing disfavour.
Marriage started to be viewed as a relationship between two persons who decided to live
together in order to produce a family. Ancient marriage ceremonies ceased to be consid-
ered necessary for the existence of the conjugal bond.10 A union started to be considered
a marriage whenever two persons (both of them having conubium, i.e. legal capacity to
marry, based on citizenship and age) began to cohabit with affectio maritalis, i.e. the will
to be husband and wife.11 Ceremonies that accompanied the beginning of their conjugal
life were still celebrated but they were only social indicators of the existence of affectio
maritalis. Just as the beginning, the end of marriage also did not require legal acts. Affectio
maritalis had to persist during the marriage, and the conjugal bond ended when this af-
fection failed in one or in both the spouses and the couple ceased to live together (Nuptiae
sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani iuris commu-
nicatio: D.23.2.1). A truly revolutionary change occurred in the nature and rules concern-
ing marriage and divorce. Both these institutions had become so simple and so free that
it is not easy to find a comparable conception in Western history. A notable fact, finally, is
that divorce had become available also to women.
Important changes occurred also in the economic regulation between the families of
the spouses. When the new marriage (called by modern scholars sine manu) replaced the
old one (usually defined cum manu) the dowry continued to be seen as a contribution by
the wife to support the expenses of conjugal life (D.23.3.56.1). In Augustan times, however,
new provisions began to limit the right of the husband to dispose of it. In 18 ad a lex
Iulia de fundo dotali forbade the husband from selling dotal lands located in Italic terri-
tory, in post-classical times the prohibition was extended to all the immovable goods, and
Justinian decided that the consent of the wife to alienation of such goods was ineffective.
At the same time, a legal rule was introduced that, in case of the dissolution of the mar-
riage, the dowry had to return to the wife. Where the former husband refused, the wife
could use a legal action called the actio rei uxoriae (Inst.Gai.4.62; Tit.Ulp.6.6 and 7; Lenel
2010, 302–310). The husband, however, was allowed to withhold part of it on account of the
“immorality” of the wife.
Another institution that underwent important transformations was guardianship. The
first rule aimed at improving the position of women was to give them the possibility to
change the legitimate tutor (as we know, a relative), and to replace him with a person of
their choice, whom they trusted. Originally this involved a coemptio fiduciae causa, a very
complicated and presumably very rare legal act, but under the Principate women were al-
lowed to address the magistrate against the tutors who had denied them authorisation to
act, and during the Empire the rules became more and more favourable. A provision in-
cluded in an Augustan law (lex Iulia and Papia Poppea) stated that freeborn women (in-
genuae) with three children and freedwomen (libertae) with four were freed from guardi-
anship (Inst.Gai.1.194). Under Claudius, ingenuae were freed from legitimate guardianship.
Finally even the ancient rule prohibiting women from acting as guardians was abolished.
In 224 ad Alexander Severus reconfirmed it (CTh.5.35.1), but in 390 widows were allowed to

10
Cantarella 1993, 116–121; Capogrossi Colognesi 2005, 63–81.
11
Astolfi 2014; Fiori 2011, 197–253.
426 The Oxford Handbook of Roman Law and Society

be guardian of their children and grandchildren, albeit only upon promise that they would
never remarry (CTh.5.35.2). And in 530 Justinian extended, to natural mothers, the right to
be guardians.
In addition to the above-mentioned civil-law rules, the praetor, from the third century bc,
had intervened using his jurisdiction and his decisions to create a new system of succession
(called bonorum possessio) which allowed women to receive mortis causa from their original
pater familias also if married cum manu, and to receive from their husband even if they had
not entered into his family. It could happen, and it happened, then, that women received
money from two families. Furthermore, the praetor extended the right to participate in the
succession also to the adgnati, as we know the relatives in the female line.
These main legal innovations were inevitably tied to the change of the way of life of the
Romans, the forms of government, the contact with other countries and, above all, of the
territorial expansion of the city. By conquering more and more territories and countries
Rome had become the centre of an Empire. It would be an error to underestimate the
effect of Roman Imperialism on gender relationships. Not only had the economy changed,
but as a consequence mentalities had also changed, and with them the relations between
genders. The last two centuries of the Republic had been centuries of wars, among which
was the devastating second Punic War. The male population had been decimated, many
women had lost their father and their husbands, they had become sui iuris. Guardianship
existed only formally: guardians did not have the possibility to control their wards, they
had their own problems. Even women who still had a father or a husband were in fact free:
bound to participate in a long military campaign, men had to stay abroad for long periods.
The only persons that they could (and were obliged to) trust were their wives or daughters,
who had to take care of their affairs and their patrimony. In addition, men often died in
war and their heirs were often women (or orphans). Women had become economically in-
dependent, and this helped them to acquire a new psychological and social consciousness
of their capabilities and their right to be free from the necessity to obey men’s will. The
archaeological evidence from Pompeii demonstrates the involvement of women in every-
day professions and shows the extent to which the free behaviour of the upper classes also
rubbed off on the lower ones. The legal contracts in which women appear as shrewd busi-
nesswomen (for example, TPSulp 60)12 or the graffiti with female appreciation of gladiators
are but a few examples.
The relation between genders became complicated. Roman men found it difficult to
accept the new reality. For centuries they had been convinced that the unity of the family
and the respect of its values was the basis of the force of the state, and they still believed
it. Women had to behave as they had always done: paraphrasing Plato, Scipio (in Cic.
Rep. 1.43) says that when women and slaves do not obey, anarchy ensues. The majority of
men, including Augustus, agreed. His concern about a substantial decrease in the birth
rate, and thinking that this was due to Romans’ reluctance to marry, caused him to pass
two laws, the lex Iulia de maritandis ordinibus (18 bc) and the lex Papia Poppea nuptialis
(9 bc), which later merged into a single text (lex Iulia et Papia). The two laws established
that men between 25 and 60 and women between 25 and 50 were obliged to marry or
remarry persons of the appropriate groups. If the marriages did not produce offspring,

12
Camodeca 1999, 152–154.
 Women and Patriarchy in Roman Law 427

limitations on the rights of succession applied (Inst.Gai.2.286). By contrast, rewards were

given to fertile couples (we have already cited the ius liberorum, i.e. liberation from guardi-
anship, for especially fertile women) (Tit.Ulp.16.1 and 14).
The most interesting rules, however, were those included in the lex Iulia de adulteriis
(D.48.5; C.9.9),13 the object of which was to ensure that family life followed rigorous ances-
tral principles. Conjugal fidelity of women had always been at the centre of family organi-
sation and ideology, and the Augustan legislation confirmed it, punishing as adultery not
only the violation of the conjugal faith by a wife, but any sexual intercourse of a woman
(even if unmarried) with a man who was not her husband. But in confirming the an-
cient principles, the law introduced a radically new principle. Until then, sexual crimes
were considered a family matter, punished by husbands and fathers.14 With Augustus they
became a crimen; that is to say, a behaviour that had to be prosecuted in a public trial and
punished (with relegatio in insulam, exile on an island) upon denunciation by any citizen.
The ancient ius occidendi remained, but with some limits, providing a highly detailed list
of cases to establish the circumstances under which it could be exercised. The husband no
longer had the right to kill the adulterous wife, but was bound to repudiate her. If he did
not, he could be accused of pandering. He retained the right to kill the accomplice caught
in flagrante delicto in his house or if he was a slave or an “infamous” person such as a gladi-
ator, a dancer or even a freedman.
The law was a total failure (Sen. Helv. 16.3; Suet. Tib. 35; Tac. Ann. 3.25.2; Iuv. 2.37, 6.115–
135, 6.183–190, 6.224–240, 6.347–349). In a century, trials for adultery numbered just over
twenty. Of course, that did not mean that Roman women had decided to obey the law.
On the contrary, they protested against it in a most extraordinary manner. As the law
excluded from punishment prostitutes and pimps, Roman matronae started to register
themselves as prostitutes: an act of civil disobedience (the first female act of that kind
registered by the sources) that clearly shows a change in women’s attitude toward mas-
culine power, in public and private. The reason why the Augustan law on adultery was
not applied, then, was not tied to women’s acceptance of the rules. It was due to the male
opposition to the transfer into the public space of a private question: the sexual behaviour
of the women of the group.
The period of “emancipation” was destined to be followed by the restoration of the old
familiar and of civic values and customs. With the changing of political, economic and
social conditions, the bureaucratisation of power and the militarisation of the state, the
conditions that had allowed and favoured emancipation no longer existed.
The decline of the state was accelerating. In the second century ad the decrease in the
birth rate had reached its peak. The Roman ruling class was decimated, and its replace-
ment was ensured only due to the mass of new citizens, many of whom were enfranchised
former slaves. The refusal of women to accept the burden of motherhood was identified
as the main cause of this decline. Women’s practice of interrupting voluntary pregnancies
without men’s consent worried the authorities. In Rome, abortion15 was not disapproved
per se. If the master of a slave or the husband or the father of a free woman decided so,

13
Daube 1972, 373–380; Cohen 1991, 109–126; McGinn 1998, 140–247; Rizzelli 2014, 145–322.
14
Cantarella 1996, 1296–147 [2005, 105–120].
15
On abortion in the Greek and Roman world see Nardi 1971.
428 The Oxford Handbook of Roman Law and Society

it was a normal practice: as the jurist Papinian writes, an unborn child “homo non recte
dicitur”: it cannot be correctly defined as a person (D.35.2.9.1). It was only a spes animantis,
the hope of a living being (D.11.8.2). But the Romans could not admit that women deprived
the men of the right to decide. Under Marcus Aurelius and Lucius Verus a certain Rutilius
Severus asked the emperors to solve a problem: his wife who he was in the process of di-
vorcing denied being pregnant, while he maintained that she was. The emperors decided
that the wife had to be examined by three midwives and, if she was pregnant, a guardian
should be appointed to ensure that she did not abort (D.25.4.1). A new legal institution was
born: as a pregnant woman was called venter, her guardian was called a curator ventris
(about the missio ventris in possessionem and its curator see D.37.9).16
Men did not trust women: since they had “emancipated” themselves, they were sus-
pected of aborting for superficial reasons. Toward the middle of the second century,
Plutarch denounces “dissolute women who use expulsive and abortives only to be impreg-
nated anew and find pleasure” (Mor. 134–135), and the philosopher Favorinus, taking up an
accusation already made against women by Ovid (Am. 2.14) and Seneca (Helv. 16.3), speaks
of the madness of women who abort their children in order not to disfigure their bellies
(Gell. NA 12.1.8–9). In their opinion the fall of the birth rate was women’s fault, as well as
the troubles created by their greed for luxury and pleasures: silk from China, perfumes
from Arabia, jewels from the Eastern countries etc.
Abortion was a threat both to men’s authority and to society. It had to be counteracted
with special new rules. As adultery it had been a private matter for centuries, but under
Septimius Severus and Caracalla (198–211 ad) this principle changed (D.48.19.39; D.48.8.8;
D.47.11.4). A woman had aborted after divorce because she did not want to give an off-
spring to her former husband, who had become an “enemy”. The emperors condemned her
to be exiled. For the first time in Roman history an abortion was punished with a public
penalty. The reason was not the tendency (visible in other fields) to imbue the legislation
with Christian principles. The offence punished was the violation of a fundamental male
right. Commenting on a rescript of Septimius Severus and Caracalla, the jurist Marcian
(D.47.11.4) is explicit: it was indecent that a woman could with impunity deprive her hus-
band of his right to a progeny.
The field where the most important interventions were necessary—through the au-
thorities—was the family: old values and virtues had to be restored. The lex Iulia de
adulteriis, as we have seen, established that female adultery represented a danger to soci-
ety as a whole and could be punished at the request of any citizen. Subsequent legislation
harshened the penalties. In 339, Constantius and Constans established that the adulteress
and her accomplice had to be put to death with the terrible poena cullei, which until that
moment had been reserved for parricide and consisted of the placing of the condemned
person in a bag (culleus) with a dog, a monkey, a rooster and a viper and throwing them
into a river (CTh.11.36.4).17
Antoninus Pius established that the man who had killed his adulterous wife would
not be punished as a murderer, but would be punished less severely according to his
social class. If he belonged to a low class he would be sentenced to forced labour for life;

16
Thomas 1986, 211–236; Cantarella 2002, 269–282.
17
Cantarella 1996, 264–289 [2005, 215–235].
 Women and Patriarchy in Roman Law 429

if he belonged to a higher class he would be exiled to an island. Marcus Aurelius and

Commodus confirmed this law and established less severe penalties for the husband who
had killed his wife outside the conditions under which the lex Iulia justified the killing of
the lover (D.48.5.39(38).8). Alexander Severus established that this penalty should be exile
(C.9.9.4[undated]).
Finally, the situation went back to the rule in force before the lex Iulia; that is to say,
impunity for the husband who had killed his wife (Sent.Paul.2.27.1). In 506 ad the lex
Romana Visigothorum, aimed at the Romans who lived under the Visigoths, established
that the husband should not be punished for killing either the lover or the wife. Only
under Justinian were the limits of impunity again tightened: in Novella 117.15 he stated
that the impunity covered only the killing of the lover, not of the wife, and established
that the husband enjoyed impunity only if he killed his wife’s steady lover and not only an
occasional one.
Finally, in 556 Justinian established that a guilty wife could avoid the death penalty: she
would be shut up in a convent and would be allowed to leave only if the husband forgave
her within two years. If not, or if the husband died during that period, she would spend
the rest of her life in the convent (Nov. 134.10). Thus female adultery was punished with a
sort of life imprisonment. As at the beginning of Roman history, women’s sexual fidelity
was considered the fundamental and absolute duty of women.18
But it would be impossible to end this chapter without some reference to the profound
effects of Christian ideology on the relationship between genders: according to Christ’s
teaching, husbands also had to be sexually faithful to their wives. According to Jesus, men
and women had equal dignity in marriage: “The husband must give the wife what is due
to her—wrote Paul (Cor. 7.3–5)—and the wife equally has to give the husband his due. The
wife cannot claim her body as her own; it is her husband’s. Equally, the husband cannot
claim his body as his own; it is his wife’s.” The new rule reflected the idea that, as the same
Paul writes in Gal. 3.28, there should be “neither Jew nor Greek, nor slave nor free man, nor
woman nor man”. Genders were equal; an idea that contributed to teach men to respect
women and to give women more consciousness. It is true is that, albeit in principle equal,
women had to be subordinate to men: after describing marriage as an equal partnership,
Paul writes: “Women’s heads are men … Men are the image of God and the mirror of his
glory, whereas women reflect the glory of men” (Cor. 11.3, 11.7).
Certainly, Christianity as a whole helped overcome the negative image that women had
carried for centuries: despite their gender identity they were baptised equally with men.
They were persons. But it did not help to cancel discrimination and subordination inscribed
in the laws concerning marriage and divorce. According to Christ’s teaching, marriage
could not be dissolved.19 The Christian emperors tried to impose this principle, totally op-
posite to the Roman ideology and tradition, dividing divorces in three types: 1) Ex iusta
causa, “a just cause”, behaviour claimed by one of the spouses, corresponding to a fault of
the other. These behaviours were different according the sex of the spouse. Husbands’ faults
included, for example, attempting to prostitute their wives, or keeping notoriously a concu-
bine. Wives’ faults were, instead (of course besides adultery), having attended a banquet or

18
On the further history of adultery as a crime of honour see Cantarella 1991, 229–244.
19
Evans Grubbs 1995, 65–73.
430 The Oxford Handbook of Roman Law and Society

the baths without their husband’s consent. The only fault common to husbands and wives
was in to trying to kill the spouse. 2) Sine ulla causa were divorces initiated by one or both
the spouses outside the cases that allowed divorce. 3) Communi consensu, finally, were di-
vorces initiated by both parties without a “just cause”. As well as the persons who had asked
for a divorce sine ulla causa, those who had initiated the procedure communi consensu suf-
fered some punishments. But the social discontent for these rules was such that the sanc-
tions for who had initiated a communi consensu procedure were cancelled by Justinian’s
successor, Emperor Justin.

Bibliography
Astolfi, R. 2014. Il matrimonio nel diritto romano classico. Padua.
Camodeca, G. 1999. Tabulae Pompeianae Sulpiciorum (TPSulp.), Edizione critica dell’archivio
puteolano dei Sulpici. Rome.
Cantarella, E. 1991. “Homicides of honor: the development of Italian adultery law over two
Millennia.” In D. I. Kertzer and R. P. Saller, eds., The family in Italy. New Haven/London.
229–244.
Cantarella, E. 1993. Pandora’s daughters: the role and status of women in Greek and Roman
antiquity. London.
Cantarella, E. 1996 [2005]. I supplizi capitali in Grecia e a Roma. Milan.
Cantarella, E. 2002, “Marriage and sexuality in republican Rome: a Roman conjugal love
story.” In M. C. Nussbaum and J. Sihvola, eds., The sleep of reason: erotic experience and
sexual ethics in ancient Greece and Rome. Chicago/London. 269–282. [= Diritto e società in
Grecia e a Roma. Scritti Scelti. Milan 2012. 631–646.]
Cantarella, E. 2006. Passato prossimo. Donne romane da Tacita a Sulpicia. Milan.
Cantarella, E. 2014. “La famiglia romana tra demografia sociale, antropologia e diritto.” In F.
Milazzo, ed., Ubi tu Gaius ego Gaia. Modelli familiari, pratiche sociali e diritti delle persone
nell’età de principato. Milan. 3–21.
Capogrossi Colognesi, L. 2005. “Matrimonium, manus e trinoctium,” in Marriage: Ideal-Law-
Practice. Proceedings of a conference held in memory of H. Kupiszewski. Warsaw. 63–81. [=
Scritti scelti II. Naples 2010. 843–863.]
Capogrossi Colognesi, L. 2010. “La famiglia romana, la sua storia e la sua storiografia.” Les
Mélanges de l’École française de Rome 122: 147–174.
Cohen, D. 1991. “The Augustan law on adultery: the social and cultural context.” In D. I.
Kertzer and R. P. Saller, eds., The family in Italy. New Haven/London. 109–126.
Daube, D. (1972). “Lex Iulia concerning adultery.” Irish Jurist 7: 373–38. [= Collected Studies
Vol. 2 (1991) 1267–1276.]
Desideri, P. (1984). “Catone e le donne. (Il dibattito liviano sull’abrogazione della lex Oppia e
la condizione giuridica della donna romana.)” Opus 3: 63–73.
Evans Grubbs, J. 1995. Law and family in late antiquity. Oxford/New York.
Fiori, R. 2011. “La struttura del matrimonio romano,” Bullettino dell’Istituto di Diritto Romano
“Vittorio Scialoja” 105: 197–233. [= Ubi tu Gaius ego Gaia: Modelli familiari, pratiche sociali
e diritti delle persone nell’età del principato. Milan. 323–366.]
Gardner, J. F. 1986. Women in Roman law and society. Bloomington.
Garnsey, P. and Saller, R. 2014. The Roman empire: economy, society and culture. London.
Lenel, O. 2010. Das Edictum Perpetuum. Amsterdam.
 Women and Patriarchy in Roman Law 431

McGinn, T. A. J. 1998. Prostitution, sexuality, and the law in ancient Rome. Oxford.
McClintock, A. 2009. “Review of Michele George (ed.), The Roman family in the
Empire: Rome, Italy, and beyond, Oxford 2005.” Bryn Mawr Classical Review 38: 1–5.
Available at: http://bmcr.brynmawr.edu/2009/2009-01-38.html, accessed 31 March 2016.
McClintock, A. (2013). “The Lex Voconia and Cornelia’s jewels.” Revue internationale des droits
de l’antiquité 60: 183–200.
Nardi, E. 1971. Procurato aborto nel mondo greco romano. Milan.
Peppe, L. 1984. Posizione giuridica e ruolo sociale della donna romana in età repubblicana. Milan.
Pomeroy, S. 1975. Goddesses, whores, wives, and slaves: women in classical Antiquity. New York.
Rizzelli, G. 2014. “Adulterium. Immagini, etica, diritto,” in Ubi tu Gaius ego Gaia. Modelli
familiari, pratiche sociali e diritti delle persone nell’età del principato. Milan. 145–322.
Saller, R. P. (1987). “Men’s age at marriage and its consequences in the Roman family.”
Classical Philology 82: 21–34.
Saller, R. P. 1994. Patriarchy, property and death in the Roman family. Cambridge.
Saller, R. P. (1999). “Pater familias, mater familias, and the gendered semantics of the Roman
household.” Classical Philology 94: 182–197.
Thomas, Y. (1986). “Le ‘ventre’: corps maternel, droit paternel.” Le genre humain 14: 211–236.
Thomas, Y. 1997. “La divisione dei sessi nel diritto romano.” In P. Schmitt Pantel, ed., Storia
delle donne. L’antichità. Rome. 103–176.
Vigneron, R. and Gerkens, J.-F. (2000). “The emancipation of women in ancient Rome.”
Revue internationale des droits de l’antiquité 47: 107–121.