Women and guardianship over women
Women were subject to stringent legal restrictions under Roman law. As Papinian clearly acknowledged, “in many parts of our laws, the condition of women is inferior to that of men” (D.
1.5.9). Nor could women generally undertake actions on behalf of others. They could act only on their own behalf, and even then with some limitations. This explains why some prominent public and private roles were considered the business of men alone. For instance, women could not hold a magistracy or public office, be judges, bring lawsuits, act as procurators, or speak in court as advocates (see Ulpian, D. 50.17.2pr.). They could not be paterfamilias, adopt children, or, until late antiquity, serve as their children’s guardian after their husband’s death. As for actions on their own behalf, women needed the consent (at least tacit) of their father to form a legitimate marriage and to divorce. And they were unable to make wills until the time of Hadrian, and then only with a tutor’s consent.Sui iuris girls under the age of twelve were subject to guardianship for children below puberty (tutela impuberum), but women aged twelve or older who were not under paternal power (or manus) were also required to have a
Family law 133 tutor (tutela mulierum), except for vestal virgins (Twelve Tables V.1). In the eastern provinces, husbands were commonly their wives’ tutors, although Roman husbands usually preferred not to be tutors for their wives, in order to protect marital affection (affectio maritalis) and avoid conflicts of interest. Women’s tutors were not personal custodians and did not control women’s personal lives or their property. Women required the authorization of their tutor (auctoritas tutoris) to make a will, to alienate property by formal conveyance (res mancipi), to emancipate a slave, and to constitute a dowry, among other acts. But in practice, independent (sui iuris) women were able to conduct most of their own affairs (see Gaius 1.190). The requirement of consent was very often a formality because the woman’s tutor incurred no liability by giving or refusing it. A woman was not granted any action against her tutor on account of the guardianship (Gaius 1.191), and the praetor could compel the tutor to give his consent when there were good reasons (Gaius, 1.190).
In order to promote marriage and procreation, Emperor Augustus’s marriage laws (18 bce and 9 ce) benefited motherhood (ius liberorum). Women could qualify for exemption from having a tutor by giving birth to three children (four for freed slaves) in Rome, or four in Italy, or five in the provinces. The institution of female guardianship survived at least as late as Diocletian (293 ce; see F.V. 325) and was abrogated probably in the fourth or fifth century. There is no trace of guardianship over women in Justinian’s compilation. The compilers deleted the expression tutela mulierum or replaced it with tutela impuberum.
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