WOMEN IN CLASSICAL ROMAN LAW

Our examination will focus on the legal content of Puteoli business transac­tions carried out by women. What type of contracts did women conclude with the Sulpicii? What is the typical legal position of women in these con­tracts? Which are the most convenient legal constructions chosen by women taking part in everyday business?

It is commonly known - and recorded in every manual of Roman law - that women had to have a guardian (tutor) and needed authorisation from their guardian throughout their lives if they were sui iuris (not under potestas).

Males were released from guardianship when they reached puberty, since they were then capable of having children of their own who would legitimately exclude the agnates [...] Women were never released (for even if married - except with manus - they were sui iuris, and their husband was not their guardian). Astonishment at this fact would be misplaced; subjection of women's legal acts to some male authority was virtually universal in antiquity. What does need comment is that this lifelong guardianship was whittled away by legal devices, though as a formality it hung grimly on.^[405]

Legal acts requiring authorisation from a guardian were, for example, the alienation of res mancipi,^[406] making a valid will and any contract that placed the woman under an obligation (for example, taking of credit, granting per­sonal security).^[407] Gaius pointed out the main rules of this guardianship as follows (Inst.Gai.1.144):

Parents are permitted to appoint testamentary guardians for their children who are subject to their authority, who are under the age of puberty, and of the male sex; and for those of the female sex, no matter what their age may be, and even if they are married; for the ancients required women, even if they were of full age, to remain under guardianship on account of the levity of their disposition.^[408]

As we see, ancient lawyers usually reasoned for the necessary guardianship over women based on the argument of levitas animi or inbecillitas sexus.

There does not seem to be any good reason, however, why women of full age should be under guardianship, for the common opinion that because of their levity of disposition they are easily deceived, and it is only just that they should be subject to the authority of guardians, seems to be rather apparent than real; for women of full age transact their own affairs, but in certain cases, as a mere form, the guardian interposes his authority, and he is often compelled to give it by the praetor, though he may be unwilling to do so.

During the Roman Empire some constitutions (especially the legislation of Augustus) had freed mothers with three or four children from the obliga­tion of having a guardian.^[411] The weakened practice of women’s guardianship is well demonstrated in a short document, which records the granting of a guardian by the prefect of Egypt:^[412]

Q. Aenulius Saturninus, prefect of Egypt, at the request of C. Terentius Sarapammon, granted a guardian to Maevia Dionysarion in accordance with the lex lulia et Titia and the senatusconsultum, to wit M. lulius Alexander - this grant not being to the prejudice of any legitimate guardian ‘...’ I, Maevia Dionysarion, have requested the above-named guardian, lulius Alexander, as stated. I, Gaius lulius Heracla, have written this on her behalf, she being illiterate.^[413]

The small piece of papyrus deals with an unusual situation: obviously the woman involved, a certain Maevia Dionysarion, had no guardian for a current business.

As we have seen above, modern textbooks of Roman law promote a systematic view of legal institutions utilising strict definitions. By contrast, the ancient sources offer a rather more sophisticated treatment of the same subject. I would raise the question if the first or the second issue - or prob­ably a third one - can be confirmed through the documents of everyday legal life (through the so-called ‘law in action’). I wonder whether the strongly systematic approach of the course books is in fact confirmed by business practice. The traditional view gives the impression that women were almost totally excluded from business; that they could not act at all without the authorisation of a guardian. Did they really act in every legal (or money) transaction with a guardian as is commonly supposed? Were women in business disadvantaged at all?

As a working hypothesis, let us assume that there might have been some, probably widely established, artful ways of contracting in practice, which could eliminate the strongly discriminating rules of positive law.

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