CHANGING TIMES AND METHODOLOGIES

Sed fugit interea, fugit irreparabile tempus^[359] - in formulating these famous lines, the focus of Virgil’s contemplation was human feelings and their change­able nature, but his wise observation can equally be applied to history: time marches on and new historical periods replace the old ones.

The present chapter focuses on some of the ways in which women par­ticipated in business in ancient Rome. It is obvious that the topic is inti­mately connected with the issue of the role of women in Roman life and Roman law - their advantages and disadvantages. As is commonly known, modern teaching of and research into Roman law remains to a large extent dominated by the fascinating private law theory of the nineteenth century known as ‘Pandectism’. The extent to which our ideas about the social role and economic activities or possibilities of Roman females are still shaped by bourgeois morals of the nineteenth century and by the principles of Roman law manuals written by (mostly conservative) men is an interesting question. In order to gain some insight into this, a brief survey of work on this period is required. Let us look at the works of some of the most famous authors. Rudolph von Jhering, for example, seems to have delighted in sketching a highly honourable picture of Roman ladies (matronae). He described them with much respect, but at the same time banished them to the stage of almost idealised creatures:

Kein Volk der alten Welt, die Griechen nicht ausgenommen, hat dem weiblichen Geschlecht einen so würdigen Platz in der Gesellschaft angewiesen als die Romer [...] Das weibliche Geschlecht war nach Ansicht der Romer dem männlichen nicht bloß vollig ebenbürtig und daher in sozialer Beziehung um nichts zurückge­setzt, [...] sondern es war ein Gegenstand hoherer Achtung, es stand eine Stufe über dem männlichen.^[360]

In discussing matters such as patria potestas and manus, it is worth noting that Jhering only surveyed sources concerning a few aristocratic and heroic Roman ladies.

Der Mensch ist männlichen oder weiblichen Geschlechts [...] Der Mann gehort dem offentlichen Leben an, der Beruf der Frau weist sie auf das Haus. Zehlreiche offentliche Rechte und Pflichten, die dem Manne zukommen, hat daher die Frau nicht [...] Selbst die Verbote, wonach Frauen nicht intercedieren dürfen, ins­besondere das S. C. Velleianum, werden von den Romern darauf zurückgeführt, dass Frauen dem offentlichen Leben fern stehen, denn die Intercessionen, - d. h. der Eintritt in die Schulden Dritter, um diesen Kredit zu verschaffen, - galten in Rom als bedingt durch die politische Stellung des Mannes und durch die Beziehungen, welche diese veranlasste.^[361]

This passage is a very clear statement of what women were expected to be - the last few sentences of the short chapter from which the quotation was taken also give a hint of the law in force during the time of Dernburg (which might have been present in the subconscious mind of the author when formulating his opinion): ‘Dies wurde gemeines Recht. Für Handelsfrauen gelten aber die Intercessionsbeschränkungen nicht; sie wurden neuerdings in den bei weitem meisten Landen Deutschlands gesetzlich für alle Frauen aufgehoben’.^[362] For all the respect that gentlemen felt for their honourable ladies at the fin de siecle, it is clear that they rather wished to avoid confronting them in everyday busi­ness life. Most of the famous lawyers could not help looking at the ancient sources with a certain prejudice, originating in the morals of their own age.

Modern textbooks of Roman law even now emphasise the subordinate status of women in ancient Rome, although the whole treatment has become much more sophisticated: ‘bleibt die allgemeine Regel [...] dass Frauen zeitlebens unter Gewalt stehen [...] Die rechtliche Stellung der Frau, auch der unverheirateten, wird mehr und mehr verselbständigt [...]’.^[363] Textbooks in the English tradition were always less concerned about highly systema­tised theory and kept closer to the sources: ‘The general principles of the perpetual tutela of women were the same as those of tutela impuberum [...] this institution is an uncompromising expression of tutela as in the interest of the tutors, lifelong, because the interest in the inheritance is lifelong, since a woman can have no sui heredes [...]’.^[364]

Looking at the sources, there is undoubtedly a strong tendency towards restrictive measures against women in Roman law, such as patria potestas (the power or control of the father, which included the power over death and life), manus (control of the husband over the wife in marriage), perpetual tutela mulieris (guardianship of women) which existed from the time of the Twelve Tables if a woman was sui iuris, as well as measures introduced later such as the above-mentioned Senatus Consultum Velleianum which forbade women from acting as personal surety for anyone.^[365] Nevertheless, an emerg­ing tendency to grant liberties in private law for women, especially from the beginning of the Principate, can also be detected in the sources, as in the laws of Augustus with the ius liberorum, the sceptical view of Gaius relating the sense of guardianship over women or his description of how easy it was for women to change their tutors if they were dissatisfied with the current one (to all these rules we will return below).

In the history of law, new legislation usually follows an earlier develop­ment in legal life: the legislator satisfies a certain demand created by social and economic changes. If Augustus felt obliged to grant some liberties in relation to legislative acts for women, it can be considered as a strong argu­ment that a similar or equivalent practice must have already existed in every­day legal life. At the end of the Republic, there may have been legal customs that acted ‘against the law’ - and they may have been tacitly and commonly tolerated.

Without going into detail, it is sufficient to mention the tension between the ‘law in books’ or ‘law in codex’ and the ‘law in action’ - this is well known in modern comparative law but it was less considered until now in legal history.^[366] Legal life consists not only of written laws (or theoretical, highly sophisticated decisions of jurists); the individual who forms part of a certain society also lives in a legal environment or legal culture.^[367] Friedman explained this distinction through his famous comparison between law and language (both being socially bounded phenomena):

A dictionary is full of obsolete, archaic words, alternative forms, unused and common words, all jumbled together. Only the person who actually speaks the language is a sage guide to usage [...] The dictionary gives some hints, but not enough [...] Similarly, for legal systems: they are very different in real life, from the way they appear in formal texts. Study of legal culture must begin with the living law.^[368]

In this chapter I will attempt to sketch a new picture about women and their financial transactions, focusing on the sources from ‘real life’. Apart from written law and highly developed jurisprudence, legal documents offer a fascinating vista of ‘living law’, reports of useful tricks and legally dubious methods - phenomena of a legal culture 2,000 years ago.

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