Chapter 34

Wom en as L ega l Actors

Verena Halbwachs

34.1 Introduction

“Mulieres enim quae perfectae aetatis sunt, ipse sibi negotia tractant …” (“For women of
full age deal with their affairs for themselves …”),1 writes the Roman jurist Gaius in the
middle of the second century ad in relation to the institution of tutela mulieris. In his
words, this institution had at that time already become an empty formality, envisaging
as it did the approval of the tutor for particular legal transactions undertaken by women.
According to Gaius, women ran their affairs themselves, and the fact that they required
the (controlling) support of a tutor on account of their oft-cited levitas animi2 was, accord-
ing to Gaius, “magis speciosa quam vera”—more appearance than reality.
This text, often quoted primarily since the expansion of research activity in the field
of women in Antiquity in general over the last few decades, as well as in the field of
female agency in the social and legal dimension in particular, serves as a starting point.
It allows exploring issues such as the fact of female legal–contractual agency, of for-
mally existing restrictions, but also of the mutation of these in the context of judicial
practice.
Women as legal actors appear (as men do) across diverse fields of action, and the spec-
trum covered by the term is broad. To begin with, a distinction may be drawn between the
public and private spheres as locations of legal agency. If the aim is to highlight the actions
of women against the backdrop of the Roman social order, however, such a distinction
cannot merely replicate the normatively determined framework with reference to “private
law” or “public law”. Rather, the focus should be on the scope of action available to women
within what is generally understood as agency under private law, and how they utilised
these opportunities and/or were in fact able to utilise them at all. Thus the task must be to
separate a narrower, private realm—for example, matters concerning inheritance, family
and dowry—from a broader one, such as, for example, participation in public business
transactions. Moreover, the capacity of women under procedural law to enforce or defend

1
Inst.Gai.1.190, transl. Gordon and Robinson 1988.
2
Inst.Gai.1.190. See Dixon 1984; Höbenreich and Rizzelli 2003, 40–55.
444 The Oxford Handbook of Roman Law and Society

the claims they had won through their actions in the contractual–legal sphere must also
be considered.
In a chapter devoted specifically to the subject of women as “legal actors”, it is on the
one hand necessary to describe in the abstract the generally prevailing legal conditions,
together with their deviations from and inequalities with the legal position of men.
However, areas of equality should also be emphasised and, in my view, stressed in par-
ticular, because it is precisely these areas of equality which may to some degree surprise
us in our perception of the Roman social order that was, without doubt, characterised by
patriarchy, not least on account of later legal developments specifically relevant to the legal
capacity of (especially married) women.
Furthermore, concrete examples from legal practice can and should illustrate our
knowledge of quasi-abstract legal regulations, but they should also correct and expand
them. Despite the extremely fragmentary nature of the available documents relevant
to the present question, a range of finds nonetheless furnishes us with a vivid image of
women as legal actors.

34.2 Sources

How can we track down concrete evidence of the abstract legal capacities of women and
how they exercised those capacities? First, legal documents, such as papyri, give us femi-
nine names of persons involved in the action. However, the vast majority of jurist writings
in the Digest are very general or abstract in formulation and the actual cases which may
have prefaced the legal discussion can no longer be identified.3 The place, time and other
historical elements such as the names of the persons involved have been eliminated in
the process of transformation into the general/abstract form. (The Roman jurist Ulpian
refers to the fact that the formulation “si quis” (“if anyone”) may refer either to a man
or a woman, a text that the compilers placed right at the front of the title “De verborum
significatione”, “On the significance of words”). Thus the participation of women is barely
recognisable, either quantitatively or qualitatively, in such a design. Only where deviations
in the legal treatment of female and male genders emerge, do women become visible. In
this context, the Digest is therefore above all a source for the aspect of difference; that is,
of the legal inequality between man and woman.
By contrast, the Imperial rescripts, which have primarily come down to us through
the Codex Iustinianus, are regarded in this respect as a virtual counterpart to the Digest.
Imperial rescripts are authoritative legal answers relating to individual legal disputes or
attendant legal processes, issued in response to petitions submitted to the Imperial chan-
cellery.4 The Codex contains approximately 4,600 constitutions, of which over 2,500 con-
cern private individuals. This group mainly covers the period 117 to 305 ad. Because the
preserved rescripts indicate to whom they are addressed, under which emperor they were
issued, and generally also when and sometimes where they were issued, they are not simply

3
On this problem see most recently the contributions in Depauw and Coussement 2014.
4
Nörr 1981; Honoré 1992; Connolly 2010.
 Women as Legal Actors 445

legal sources; they are also valuable historical artefacts, which allow us to gain a concrete,
practical insight into the legal actions of the petitioning parties and their legal conflicts.
For the purposes of our enquiry it is pivotal that almost a quarter of these—approximately
650—are addressed to women, providing us with an astonishingly rich seam of material
relating to their participation in social, economic and legal processes.5 Moreover, it is pos-
sible to determine whether the fact that a woman submitted the petition had any impact
on the outcome of her legal problem. Thus the Codex texts, in contrast to the juristic writ-
ing from the Digest, through the nature of their selection—which was certainly not deter-
mined on the basis of the gender of the person seeking the answer—almost by chance offer
evidence in the first instance for equality in the treatment of men and women.
In addition to these legal sources, in a narrower, conventional sense, legal–historical
research has in recent times devoted itself increasingly to studying documents from legal
practice in Antiquity, with a focus on the participation of women in legal transactions.6
Here, purely by way of example, we might cite the finds from the Babatha archive, the
commercial deeds from the Sulpicii archive, the legal dispute between a certain Dionysia
and her father or the lawsuit of Petronia Justa concerning her status. These sources, pre-
served on papyrus or wax tablets (tabulae), guide us through the everyday legal life of the
Roman Empire, even in regions far removed from the Imperial centre, and thereby pro-
vide us with insights into the legal and contractual practice of the time, and the relation-
ship between local and Roman law.7

34.3 “In multis iuris nostri articulis

deterior est condicio feminarum
quam masculorum”

This succinct statement8 by the late classical jurist Papinian (early third century) must be
considered in greater depth from the point of view of the legal scope of action of women,
particularly as it continues to define our image of the female role in Roman Antiquity up
to the present day.
Without doubt, the capacity of women in the public–legal realm was fundamentally dif-
ferent from that of men. Women were prohibited from holding public office:9

Feminae ab omnibus officiis civilibus vel publicis remotae sunt et ideo nec iudices esse pos-
sunt nec magistratum gerere nec postulare nec pro alio intervenire nec procuratores existere.
(D.50.17.2pr)

5
Huchthausen 1974 and 1976; Sternberg 1985; Halbwachs 1999; Connolly 2010.
6
Jakab 2013; Reduzzi Merola 2012. 7
For an introduction see Tuori 2007.
8
D.1.5.9: “There are many points in our law in which the condition of females is inferior to that of
males.” (All translations from the Digest are from Watson et al.)
9
Forgó-Feldner 2000; Peppe 1984; Bauman 1992 gives an overview of the opportunities which—
particularly “prominent”—women nonetheless took advantage of in order to exert influence in the
public/political realm.
446 The Oxford Handbook of Roman Law and Society

Women are debarred from all civil and public functions and therefore cannot be judges
or hold a magistracy or bring a lawsuit or intervene on behalf of anyone else or act as
procurators.

This fact is frequently mentioned in the sources and in various contexts. Women could
neither accede to the office of magistratus, nor serve as iudex. The jurist Paul observed
that the exclusion of women from public office was not because of any lack of judgemental
capacity (iudicium) arising from nature, as was the case in respect of the deaf, mentally ill
or under-age, but because it was in accordance with the mores.10
To a certain extent this closes the circle of argument that we find with the Roman jurists.
Gaius, quoted at the start of this chapter, opines that the generally assumed levitas animi
was more appearance than reality, thus also denying that women were not in a position to
transact business (absolutely) on their own account, on the basis of their natural aptitudes.
If, from this point of view, one reads for example the rescripts to Dionysia11 and Octacilia,12
where the advocacy for the son of Dionysia for her part and the assumption of the tutela
impuberum or guardianship by Octacilia is at issue, and where it is described in the re-
script as a munus/officium virile (a male duty or office) and ultra sexum muliebrum/ultra
sexum feminae infirmitatis, the following conclusion is reached. The infirmitas, levitas or
imbecillitas of the female sex was considered even by the Roman jurists as a construct of
the mores, and was often tied in with the topos and postulate of the female pudicitia, the
virtue of modesty.13
The fact that women, according to these rules, could not assume guardianship over
their under-age children (tutela impuberis) undoubtedly represented a significant inter-
ference in their scope of action, as management of—frequently not inconsiderable—assets
was a core area of legal competence as evidenced by the large number of sources on the
subject of the tutela impuberis. It is notable, however, that although the ban was not re-
laxed de iure until the late classical period, and then finally abolished,14 a range of sources
provide evidence of a de facto administration of the assets of under-age children by their
mother before this point.15 Moreover, we find configurations in which the mother releases
the child’s tutor by means of a stipulation from responsibility under the actio tutelae with
respect to the ward by issuing a guarantee herself. Of course, this resulted in legal con-
sequences with regard to the (non-)applicability of the senatus consultum Velleianum.16
Furthermore, a surprisingly detailed case report has come down to us in the Digest, from
which it emerges that a grandmother had managed the business affairs of her grand-
son and had granted him maintenance payments, which were now being claimed by the
grandson’s successors in the context of the settlement of a non-contractual obligation (ne-
gotiorum gestio).17 The jurist Paul argued here with reference to a number of applicable

10
Cf. D.5.1.12.2; see Benke 1995. 11
C.2.12.18 (a. 294). 12
C.5.35.1 (a. 224).
13
On epigraphic and literary sources that emphasise this ideal picture of the Roman woman see
most recently Lamberti 2014, 61–77.
14
Kaser 1975, 227–228.
15
On these sources and on the relationship and potential mutual influence of Roman law and
Greek legal practice in the provinces see Chiusi 1994; Giunti 2012, 366–379; Gagliardi 2012 with a
comprehensive literature overview on the topic of the woman as guardian.
16
C.4.29.6pr (a. 228); on the senatus consultum Velleianum see later in this section.
17
D.3.5.33; see Halbwachs 2014 with additional evidence.
 Women as Legal Actors 447

rescripts that dealt with similar sets of circumstances. Thus we see that despite the formal
bar on the assumption of a tutela impuberis by a woman, with the justification that this
was a munus virile and not suited to women due to the female infirmitas, the jurists firstly
accepted the practical agency on the part of women and, secondly, sought and found legal
solutions in order to take account of the conflicts emerging from this fact.
The aforementioned papyri from the so-called Archive of Babatha also provide evi-
dence of the entanglements of women in matters of guardianship and in recent years have
provided the basis for enquiries into the relationship between local law in the newly cre-
ated province of Arabia and Roman law. In the early 1960s, a range of documents from
the years 97–132 ad were found on the west coast of the Dead Sea. They provide us with
information on the legal relationships of a woman of Jewish extraction named Babatha.18
Babatha pursues a case against the tutors of her son Jesus from her first marriage in
which she argued that the maintenance payments for him were too low. She wished to
take over the administration of the assets of her son personally, as she was of the opinion
that this would produce higher yields, and consequently a more fitting allowance for him.
Unfortunately, the outcome of the legal dispute is unknown, as the relevant documents
are missing.
Let us now return to Ulpian’s statement in D.50.17.2pr. Women were also prohibited
from representing others before a court; in other words to file petitions (postulare) or to
intervene for the liabilities of other persons (intervenire). The prohibition on postulation
leads us to the story of a certain Carfania, who is named by Ulpian19 as a cause of the
prohibition:20

Next comes an edict against those who are not to make applications on behalf of others.
In this edict the praetor debarred on grounds of sex and disability. He also blacklisted
persons tainted with disrepute. On grounds of sex, now he forbids women to make ap-
plications on behalf of others. The reason for this is to prevent that they involve them-
selves in the case of other people contrary to the modesty in keeping with their sex—that
women fulfil male offices. Originally, this was in fact brought about by a most disapproved
woman— Carfania—who by brazenly making applications and disturbing the magistrate
gave rise to the edict.

Turning to the question of the legal opportunities and consequently also to the actual
recourse of women to legal transactions in the field of private law (be it in the “purely
private” sphere, be it in the framework of “extra-domestic” participation in business
life), the question of the competence of women in contractual and property matters is a
central one. Contractual competence is the precondition of any (legally effective) busi-
ness activity, while the legal right to own property is presumably a key motivation for
making legal transactions. Whereas in modern legal systems this topic is largely governed
in a unified manner for every person, in Roman Antiquity a differentiation according to

18
For details and an extensive bibliography see Oudshoorn 2007; also Katzoff and Schaps 2005;
Meyer 2007; Grzimek 2001, 23–40.
19
D.3.1.1.5.
20
On the case of Carfania and her reception in the contemporary literature from the point of view
of the supposed pudicitia of female participants in public life see Chiusi 2013; Lamberti 2014, 78–79;
Benke 1995; Höbenreich and Rizzelli 2003, 61–72.
448 The Oxford Handbook of Roman Law and Society

specific groups of people is required, due to the pronounced stratification of the Roman
social order.
An initial differentiation between the free and unfree (slaves) strata must be made.
Although slaves lacked legal competence to the extent that they could also be the objects
of legal transactions, they were, however, utilitatis causa viewed as legally competent when
it was expedient for the dominus or domina to utilise them for the conclusion of legal
transactions. At this lowest rung of the social hierarchy, a differentiation by gender is not
discernible, and female slaves acted more or less as independently as male slaves within
the context of their peculia.21
In the case of free persons (ingenui—persons born free, and liberti—freed slaves) a dis-
tinction must again be made between those subject to authority (alieni iuris) and others
(sui iuris). Free women were either sui iuris (in which case their legal capacity was largely
equal to that of men, with the exception of the restrictions to be discussed here such as the
tutela mulieris), or they stood—entirely independent of their age—under the patria potes-
tas of their father (a fact which nonetheless did not distinguish them from their male rela-
tives assembled within the same agnatic family unit) or under the manus of their husband
(filiae loco), and were thereby not competent to own property.22 It remains to be pointed
out that a free woman not subject to authority, even if she was married (without entering
into a manus marriage), was in a position (from the age of 12 onwards) to engage in legal
transactions independently to a large degree, and to assign the profit from these transac-
tions to her own assets. At this point it should also be stressed that in the manus-free
Roman marriage a strict separation of property was maintained and the woman remained
the owner of her estate. Even gifts between spouses were forbidden, and legally enforce-
able mutual maintenance rights did not exist, only the moral obligation of the husband
to support his wife from the fruits of the dos.23 All these facts greatly distinguish Roman
law from many successive European legal systems up to the beginning of the twentieth
century. Yet these are barely mentioned in the theories relating to the reception of Roman
law; indeed, they have been more or less consciously suppressed, and to the present day
only surface in specific areas of research, including conceptualisations of living conditions
in Antiquity. Furthermore, conventio in manum in the course of a marriage becomes ever
rarer as early as the late Republic, and by the time of the Principate represents only an
“isolated exception”.24
The institution of tutor mulieris,25 too, who had to give his auctoritas (approval) for
certain business transactions of sui iuris women, lost its practical significance in social life

21
By peculium is understood a special asset, which is given over by the dominus to his male and
female slaves (or by the pater familias to the children-in-power) to be independently managed by
them; the holder of authority also remains the owner of the asset. On the economic activities of
persons subject to authority see e.g. Gamauf 2009; on the legal implications and/or on the so-called
adiectitious liability of the holder of authority benefiting economically from the business dealings
see Kaser and Knütel 2014, 292–295.
22
For an overview of the structure of the Roman familia see Kaser and Knütel 2014, 86–96. On
literary sources on the position of married women see, for example, Höbenreich and Rizzelli 2003,
112–166.
23
Cf. Halbwachs 2010. 24
See Kaser 1971, 323–325.
25
See Kaser and Knütel 2014, 369–370; Gardner 1986, 5–29; Holthöfer 1997 (with extensive
literature overview).
 Women as Legal Actors 449

as early as the classical period (to a large extent also due to legal changes relating to the
appointment or selection of the actual tutor). The type and form of transactions requiring
auctoritas tutoris become fewer in number due to the increase in formless transactions.
The type tutor legitimus (tutor is the closest agnatic relative) was abolished in the first half
of the first century ad; the self-interest of the tutela was no longer a relevant characteristic
for a party who was no longer an intestate heir. Women gained ever more influence over
the selection of their tutor. The causes and motivations for these changes were probably
multilayered—not least the waning of agnatic ties and of the role of exercising control as a
tutor, regarded as onerous, particularly in cases where the woman had already achieved a
high degree of personal autonomy within the existing social structure. Yet the final disap-
pearance of this legal institution, which had already been superseded, did not occur until
the early fourth century, on the basis of a Constantinian constitution.26
This is a good example of a long-term de iure adherence to a situation that cannot have
had any de facto significance for a long period of time.27 The fact that traditional argu-
ments for the institution of tutela mulierum based on the feminine levitas and infirmitas
animi were “magis speciosa … quam vera”, as Gaius says, was also demonstrated by the ius
trium vel quattuor liberorum provided for in Augustus’ statutes relating to marriage law.28
Through this “right of three children” for women who were born free, or the “right of four
children” for freed women following the birth of a corresponding number of children,
they were freed not only from certain (disadvantageous) provisions of marriage law (for
example, the duty to marry, on pain of sanctions in matters of inheritance),29 but also from
the dictate of tutela mulierum.30
This right was later granted as a privilege to certain persons independent of the birth
of children, in order to obtain certain advantages. In our specific context, a report by
Suetonius in the Vita divi Claudii31 is of interest. In order to secure the food supply to
a sufficient extent, persons working in grain transport were to receive particular moti-
vation through the granting of certain privileges. Among such magna commoda for the
manufacturers of trade ships, in addition to the granting of citizenship to Latini and the
liberation of citizens from the regulations of the lex Papia Poppaea, Suetonius also lists
the granting of ius quattuor liberorum to women.32 The text may in fact also reveal some-
thing about the engagement of women in this industry. In any case, it becomes clear that
the notion that women needed protection from the dangers posed to their assets through
economic transactions by way of the institution of tutela mulierum was no longer current;

26
C.2.44.2.1 (undated).
27
Jakab 2013 has investigated the wax tablets from the Sulpicii archive, commercial documents
from the first century ad found in Pompeii in 1959, from the point of view of the participation of
women in financial transactions; she comes to the conclusion that the fact that tutors are barely
mentioned in these documents from legal practice may lie in the fact that women had their business
transactions carried out by slaves and freed persons to a particularly large extent (Jakab 2013,
148–149).
28
Treggiari 1991, 60–80.
29
To this extent this right also applied to men after the begetting of three or four children and
released them, for example, from the obligation of taking on a tutela.
30
Inst.Gai.1.145. 31
Cf. Suet. Claud. 18–19.
32
On the question of why explicitly only the right of four children of freed persons is mentioned
here see Sirks 1980 and Höbenreich 1997, 77–79.
450 The Oxford Handbook of Roman Law and Society

it would most likely have been entirely absurd to rob them of this protection through the
granting of privileges.
If one considers the legal capacity of women in business and contractual life from the
point of view of the difference with that of men, we must of course mention the senatus
consultum Velleianum.33 This s.c., dated around the middle of the first century ad, forbade
women from obligating themselves through intercessions. Classical Roman law understood
the term intercession as the assumption of an external debt and the liability for such a debt—
whether the woman stood as guarantor or third-party pledgor alongside the indebted third
party, or whether she assumed the liability instead of the (indebted) third party. Ulpian
justified this measure with the familiar topoi, namely that women must be given assistance
due to their imbecillitas sexus, that they must be protected from themselves.34 Paul in turn
opined that, because women were traditionally excluded from officia civilia, this should
be the case where not only their own affairs were at stake, but also the assets of the whole
family.35 To what extent the actual intention of the s.c. was the protection of women, or in
fact their exclusion from a highly relevant segment of the Roman economy, is a controver-
sial topic within the literature.36 On the one hand, the effect of the s.c. was not in the form of
an absolute, strict invalidation of intercession transactions; rather, it was enforced through
an exceptio senatus consulti Velleiani of the female respondent that could also be waived.
Moreover, the woman could not, for example, dispose of her liability if her creditor did not
know that she had become his debtor through intercession.37 This hardly accords with the
postulated goal of protection. In the pronounced casuistry of the sources, it is in any case
clear that a high degree of legal uncertainty existed as to whether a specific set of facts was
to be subsumed under the elements of the s.c. or not. Thus under certain circumstances a
woman appeared less attractive as a potential intercession debtor than a man.38

34.4 “Parvi autem refert … masculus

sit an mulier”

This statement39 by the jurist Ulpian is admittedly taken from a specific context; namely,
the question of the adiectitious liability of a ship owner for business transactions con-
cluded by his captain (magister navis). Nevertheless, it seems as if the same applies to all

33
The multiplicity of records which have come down to us and the broad casuistry on this topic
in any case provide evidence of the real relevance for women and/or their business partners and also
give an insight into the highly complex tripartite legal relationships in which women were involved.
34
D.16.1.2.2. 35
D.16.1.1.1. 36
See most recently Benke 2001 and Finkenauer 2013.
37
D.16.1.4pr.
38
This eventuality was also recognised absolutely by the jurists: Cf. D.16.1.11: “Si mulier tamquam
in usus suos pecuniam acceperit alii creditura, non est locus senatus consulto: alioquin nemo cum
feminis contrahet, quia ignorari potest, quid acturae sint.” (If a woman receives money for her own
use, but with the intention of lending it to another, there is no place for the senatus consultum; for
otherwise no person will contract with women because he cannot know what they might do.) On the
possibility for women to waive protection by providing surety see Finkenauer 2013.
39
D.14.1.1.16: “It is immaterial whether [the shipowner] be male or female”.
 Women as Legal Actors 451

areas of legal transactions that do not explicitly provide for unequal treatment of the sexes.
Ulpian’s sentence, that whenever “si quis” is written it “masculos quam feminas complec-
titur”,40 suggests such a conclusion, and we hardly find any further indications of explicit
differentiation in the legal sources, with the exception of the few restrictions referred to
above. The fact that in the Corpus Iuris we often find quasi-modern gender-neutral for-
mulations must not (cf. Ulpian) lead to the misapprehension that women were excluded
where they were not specifically mentioned. The reason for this is more likely due to the
fact that these clarifications on the part of the jurists appear where apparent legal uncer-
tainty reigned due to the concrete legal configuration in that instance. This can be estab-
lished particularly clearly in the field of adiectitious liability.41 Here, the legal relationships
between three parties are always at issue, and the person cited as liable must vouch for an
obligation which she herself did not contractually give rise to. Thus the situation is not
dissimilar to an intercession transaction, and interceding was (in principle) prohibited for
women by the s.c. Velleianum. As abstract as these sources may be in their writing, they do
however provide very good evidence of the actual participation of women in specific fields
of economic life.42 Thanks to recent research, which increasingly tackles the role of women
outside the family and “purely private” sphere, independent female action has also—to a
certain extent—found its way into the relevant textbooks on Roman law.43 Through earlier,
all-too-abstract modes of representation that were primarily focused on those points at
which the legal status of women differed from that of men, this received too little atten-
tion—indeed, it was actually concealed. The topoi of levitas, infirmitas or imbecillitas of
the female sex created by the Roman jurists, in this way, shaped the image of the legal,
social and economic competence of women in their time up to the present day.
In the rescripts mentioned at the start of this chapter, legal themes relating to all areas
of life appeared. Of course, questions relating to inheritance or dowry are well represented
here, as are, for example, the consequences of the prohibition on marital gifts. With regard
to dowry and the prohibition on marital gifts, the participation of the woman is of course
inherent to the topic. To this extent, the multiplicity of juristic writing on this topic in the
Digest demonstrate that women did not seek to avoid legal conflicts resulting from such
legal relationships, which were in the narrower sense “private”, but rather were concerned
to pursue their claims in a consistent manner.44 If these disputes within the family are not

40
D.50.16.1: “Verbum hoc ‘si quis’ tam masculos quam feminas complectitur”. (This expression
“If anyone” covers both men and women.) On the semantic absurdity of this statement, as “si (ali)
quis” in any case encompasses both the feminine and the masculine form see Benke 2000. Whereas
such “general clauses” today—allegedly—aid the better readability of texts, it was important for the
compilers themselves to stress that both genders were indeed encompassed by the masculine form as
well as the feminine.
41
Cf. e.g. also D.14.3.7.1.
42
The fact that Ulpian in D.14.3.7.1 does not employ merely theoretical statements can be seen in
a rescript to a certain Antigona from the year 293: C.4.25.4 Impp. Diocletianus et Maximianus AA. et
CC. Antigonae: Et si a muliere magister navis praepositus fuerit, ex contractibus eius ea exercitoria
actione ad similitudinem institoriae tenetur. (Even if the magister navis is employed by a woman, she
has liability arising from its contracts in accordance with the example of actio institoria.)
43
Cf. e.g. Kaser and Knütel 2014, 95–96.
44
Papyri, although extant in large numbers almost exclusively in the area of Graeco-Roman Egypt,
also provide information on the way the authorities there responded to the fact that different legal
452 The Oxford Handbook of Roman Law and Society

comparable with a businesswoman acting in the public realm, one recognises here the self-
confident action of (married) women all the more. Alongside these (often, legally speaking,
extremely demanding) configurations of the family nexus, we also see that women brought
a large number of petitions relating to sales contracts, rental agreements and primarily also
loan transactions. In the latter case, women are above all present as providers of credit. The
demand for the considerable wealth in the hands of women becomes as visible here as the
organisational structures as many people availed themselves of their capital through both
free and unfree administrators.45 In the context of lending activities the involvement of
women in fenus nauticum (shipping loans) is particularly striking,46 whereby women actu-
ally appear overrepresented in the few preserved texts.47 And also the many sources which
are extant in the s.c. Velleianum provide evidence of the active participation of women in
financial transactions.
We can only briefly refer here to the spectrum of professionally active women, in other
words those who fitted into legal processes other than through economic activity with
capital available to them through inheritance, for example, as was thoroughly customary
for the Roman upper class.48 The available material on this subject consists, besides liter-
ary material, primarily of archaeological sources. Here we do admittedly find job titles,
although these provide little information on the legal relationships, working conditions,
organisational–operational structures etc.49 In today’s terminology, most of these occupa-
tions would be described as being in the service industry. As with men, the majority were
slaves and freed women, who were employed as subordinate workers or as specialists with
specific technical skills.50 Women who introduce their own capital in order to achieve a

circles came into contact with one another. These sources, too, confirm both the presence of women as
well as their readiness to engage in conflict in the course of their legal transactions. On the legal dispute
of a certain Dionysia, who in 186 ad brought a petition to the praefectus Aegypti to defend herself
against financial claims brought by her father, see Kreuzsaler 2008 and Kreuzsaler and Urbanik 2008.
45
To this extent this is congruent with the observations of Jakab 2013 in the documents of the
Sulpicii archive. It should be mentioned here that the late classical jurist Callistratus declares that
women could not practice the profession of argentarius (see Gardner 1986, 235–237). The justification
for this again follows the familiar model: the business of the argentarii is a profession reserved to the
male sex (D.2.13.12: “Feminae remotae videntur ab officio argentarii, cum ea opera virilis sit”—women
are held to be excluded from the office of banker since this is a masculine type of work.) On the
profession of an argentarius, who probably provided various financial transactions such as custody
or money-changing transactions to a modest degree (though effected in the public realm), see Bürge
1987.
46
The fenus nauticum is granted by the lender for the financing of the transportation of goods
across the sea. Capital plus interest are only to be repaid if the ship and/or the goods reach their
destination safely, which means that the creditor assumes the periculum, in other words the risk
of loss caused by vis maior. To compensate for this, it was possible in the case of this type of credit
business (which at the end of the day represents a type of insurance contract unknown to Roman
law) to demand interest rates that exceeded the maximum permissible rate of interest.
47
On the rescripts to Aurelia Iuliana (C.4.33.4 [undated]) and Aurelia Cosmiana (C.4.33.3 [a. 286])
see Halbwachs 1999.
48
See also Eichenauer 1988; Kampen 1981; Gardner 1986, 233–255; Höbenreich and Rizzelli 2003,
167–177.
49
However, papyri have come down to us from Roman Egypt that do show detailed agreements
with nutrices (wet-nurses) (Eichenauer 1988, 270).
50
Joshel 1992.
 Women as Legal Actors 453

return and to increase their assets are not covered by the occupational designations found
in the sources.

34.5 Conclusion

Women as legal actors rather than as only passively affected individuals are to be found in
the classical sources more often than is generally assumed. This is borne out by literary re-
ports as well as in documents from legal practice, whereby the latter—in relation to later pe-
riods—have unfortunately (hitherto) only come down to us to a limited extent and have only
recently been the subject of evaluation and review from the point of view of the participation
of women. But the juristic writings—and this is surely coincidental and not programmatic—
provide us with a range of cases in which women are involved, in which they take a stand for
their claims (and in doing so act successfully) and where an unequal treatment in the legal
opinion is not discernible. Here the task is to direct our focus onto these configurations, while
of course taking into account the Roman social order, and not to allow the issue to be clouded
by subsequent measures which limited the autonomy of (above all, married) women.

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