University of Graz
About Filling Gaps Being a Roman Citizen: ‘Her-Story’*
First of all, I’d like to express my sincere thanks to the organisers of the CISSR’s annual meeting, and especially to Prof. Mauro Pesce, for honouring me with the invitation to speak before such a stimulating interdisciplinary board, and to publish my considerations in the Annali di Storia dell’Esegesi.
Leo Peppe (in his contribution published in this same volume) mentions many important points which I can fully endorse. Further subjects in that regard are treated by Patrizia Giunti and Valerio Marotta who have been selected to participate in this discussion due to the sensitivity which they have shown in reference to those issues (in the case of Patrizia concerning women’s legal history and in Valerio’s case concerning civil rights) as well as due to their competence exhibited in scholarly matters in general. Because of the brevity required I will concentrate on three points.
1. – When I started doing research at the University La Sapienza in the late 1980s, I was immediately attracted to those topics which in the countries beyond the Alps were not treated because there, in the field of Roman law, the prevailing focus was the traditional one, i.e. on questions of private law and dogmatics. Among these highly interesting subjects were to be found: public and institutional aspects, penal law, administration, economy and society as well as women’s legal history. Already during my time as a law student it struck me as highly inappropriate that in the legal discourse generic masculine words were exclusively used. Moreover, the fact that the female sex was barely mentioned at all except in connection with topics like family and children, seemed to be undemocratic and unscientific.
2. – The second wave of women’s studies, which at that time had been in existence not even for 20 years, was tainted by a bad reputation and – which was even worse – almost totally ignored by my Romanist colleagues (and, to be honest, among Germanists the situation was in no way better). The theories and hypotheses put forward by only two (!) courageous representatives of this approach in Italy, namely Eva Cantarella and Leo Peppe, were ignored, ridiculed or, as shown by the reviews of studies on the subject matter among legal experts, at least in some instances, not understood. During the last years and after severe struggles women’s and gender studies have successfully made inroads even into the Roman law textbooks which, however, are still characterised by a fairly dogmatic approach. Whereas Cantarella has adopted a rather ‘classic’ feministic approach regarding the history of women in Ancient Greece and Rome, Peppe has focused more on those areas where one would least of all expect to encounter women: outside the house, on the street, and on the forum.
3. – By the time women’s studies had gained some recognition and found their way, enriched by men’s studies, into gender studies I succeeded, together with colleagues in Latin America and Europe, in establishing a network cooperation with symposia and the edition of a book series. It is since 2008 that we reflect intensively – under the auspices of Leda who had sex with two men (King Tindareos, her husband, and Zeus, who went after her in the form of a swan) and gave birth to twins afterwards – on antiquity, law, and gender.
Due to the fact that, during my frequent stays in the Urbs, I had run into the highly esteemed author of Posizione giuridica e ruolo sociale della donna romana in epoca repubblicana (1984) quite a few times (when he gave the book to me in 2012, in his dedication he considered it already a find of “archeologia romanistica”), I decided to ask him to reconsider the issue he had dealt with so brilliantly three decades previously and thus write a concise monograph for our Leda-book series. 100 pages would suffice. The book’s purpose was to find out what has changed in the way of writing history and to broaden the chosen time frame, but, especially, to track women’s steps not into the bedroom, as is still common, but rather into the public space. For in the course of my own studies I had encountered women as lawyers, gladiators, shipowners, and tax payers. The notorious phrase often repeated by jurists, namely that women were debarred from holding public offices (officia) struck me as having been refuted or at least limited by the fact that women appear as tutors, priestesses, and even climb up the ranks close to provincial government in some of our sources. The widespread opinion that women were not allowed to take part in the Comitium, the law-giving assembly of the people of Rome, at a closer look is true only with regard to the formal voting process, while there is evidence that in the informal contiones, where the citizens discussed political or legal issues in order to prepare the final voting, also women took part. As an even closer look shows, on the one hand there was no explicit rule prohibiting women from availing themselves of a provocatio ad populum, the right of a citizen to appeal against a decision of a magistrate in front of the people’s assembly; however, on the other hand, there exists no direct proof of such a provocatio ad populum, neither with regard to men nor to women. Nevertheless, the appellatio / intercessio in one instance was made use of by a woman, Manilia, a meretrix. This evidence is trustworthy as it is taken from a book written by an important jurist, Ateius Capito.
Leo Peppe did not want much asking and finally wrote a 500 page-book covering 1300 years of history about the rights and powers, legal and political, of cives Romanae. According to the author, at the end of his renewed view and numerous new reflections, the place of women in the course of Roman history underwent modifications but not substantial changes. He’s known to be a very prudent scholar. Sometimes I wish he was more daring, simply because our sources allow it, and it is precisely him – as we will see shortly – stressing on it. All in all, we agree with Peppe that dichotomies like active – passive, inside – outside, inclusion – exclusion must nowadays be considered inadequate patterns of questioning the female (or male) role.
1. – With regard to the investigation of women’s institutional presence, which – as far as I can see – has been documented in this all-encompassing and profound way only by Peppe, he is still to be considered an absolute pioneer. His work is neither a comprehensive treatise nor a handbook or a synthesis. Rather, the book’s structure is based on meticulously researched case studies from different periods of Roman history, connecting archaeological, epigraphic, literary, and juridical material.
As far as his Civis Romana is concerned, the author has decided to adopt an explanatory model based upon the integrative, indispensable, and appreciated complementarity of women in Roman society, which, however, applies with relation to unequal actors.
In the open access Austrian Law Journal (2017) Peppe considers this difficulty again, dating back to his first investigations, now with a new final tuning: “The free Roman woman was a civis, a citizen: yet in what way did she belong to the populus? The issue here is not exclusion, […] but inclusion within a sphere of civic relationships that may go right to the heart of political power and government”.
In this context, we could list eminent and wealthy women holding the highest civic offices, for example in the province of Asia Minor in the second century CE the post of demiurge, Plancia Magna of Perge and Motoxaris of Selge (two towns in the vicinity of present-day Antalya), who as eponymous magistrates represented their cities to the world. We also have evidence of rich ship-owners engaged in the maritime food supply for the Roman capital, therefore exempt from taxes, since the early Principate, quoting just the case of the powerful Flaminica-priestess, Flavia Publicia, in close connection with the politics of the Philippi (247 Philippus of Arabia – 257 Valerianus and Gallienus).
2. – I would like to elaborate on the point of female power and authority a little further. Patria potestas, materna auctoritas a section in a recent publication is titled. The subject of investigation in this section is, among others, the authorisation conferred by the praetor upon the mother, and not the father (!), to take back the married daughter from the house of the son-in-law (abducere filiam). This authorisation is based on the interdict de liberis exhibendis et ducendis. Of great interest in that regard is the nota auctoritas of the materfamilias mentioned by Ulp. 71 ed. D. 126.96.36.199 with respect to this case, i.e., her undeniable and undisputed authority which refers to the external, public sphere, besides her equally necessary impeccable conduct of life in the private, family-related sphere of the house. The final sentence in this fragment has been probably wrongly suspected of being a mere glosseme (originating not from jurists in the period of the Principate, but from the period of Justinian).
It is perhaps equally wrong to suspect the potestas inaequalis matris mentioned by Ulp. 38 Sab. D. 27.10.4 of being inauthentic, where the paternal power is compared to the maternal power with regard to the pietas. This maternal power is unequal, because it is invested with a lesser degree of auctoritas, but nevertheless provided with equal quality. After all, it concerns the potestas of a woman/mother. The argumentation might probably be traced back to Sabinus. Among recent scholars the significant and hitherto underestimated importance of mothers – and not only with regard to the (often hardly visible) upbringing of children – is stressed. In that respect it seems quite remarkable that liberi naturales, children born outside marriage, who from a legal point of view do not have a pater, receive their mother’s nomen gentile, then a first name and finally a random surname (sometimes also that of their biological father). Since the beginning of the Principate, there is evidence referring to an even more telling practice, namely, that legitimate children receive the double gentilicium, the name of both parents. Put in other words: besides the family name of his father, the son also receives that of his mother! Due to their family-related societal status, women are doubtlessly very much present in the public and exert an even bigger influence than previously acknowledged in literature. Evidence pointing to the fact that women were regarded as being equal to men in legal matters and even with regard to decision-making, is calculated to astonish people (and especially jurists!). Thus, for example, wives are consulted in an equal way as are relatives and friends (amici, propinqui, uxor), where – according to a rhetorical lex – the power to kill in case of raptus or parricidium is exercised or renounced. Such a ‘perfect father’’s role is assumed by Augustus in the case of Cinna, who planned a deadly attack on the princeps, which he has to answer for. Augustus listens to the advice of Livia, who recommends to adopt clementia, before presenting his decision in the consilium amicorum.
3. – However, the maternal potestas or auctoritas disclosed in these sources – the content of which is admittedly quite difficult to categorise – is said to have been only a permitted fact, not a technical-legal right per se. This, at least, is the opinion cautiously voiced by some scholars, among others also by Peppe. But is it possible to separate societal practice, ethical beliefs, and law at all? In a society on the legal findings of which one of the most famous jurists of the so-called mature classical period, on the apex of the most subtle discussion concerning ius understood as ars boni et aequi, Salvius Iulianus, counsellor of emperor Hadrian, reflects as follows (cf. the text below): A habit acquired by Roman citizens a long time ago and which is said to have a foundation in the moral standards and thus corresponds to the will of the people, is equally binding as leges. If the rules rebus ipsis et factis and tacito consensu omnium cease to be in force because the citizens habitually do not apply them, as if they had been abrogated in a formal way by means of a iudicium populi, then one could draw the conclusion that ‘omnes‘ encompasses men and women equally. There is no doubt that women have an active share in the public decision making process. Thus, the mores were also established, passed on, and given up with their participation. But in technical-legal terms Julian probably took into consideration only the male citizens, who were permitted to vote.
Iul. 84 dig. D. 188.8.131.52: Inveterata consuetudo pro lege non immerito custoditur, et hoc est ius quod dicitur moribus constitutum. nam cum ipsae leges nulla alia ex causa nos teneant, quam quod iudicio populi receptae sunt, merito et ea, quae sine ullo scripto populus probavit, tenebunt omnes: nam quid interest suffragio populus voluntatem suam declaret an rebus ipsis et factis? quare rectissime etiam illud receptum est, ut leges non solum suffragio legis latoris, sed etiam tacito consensu omnium per desuetudinem abrogentur.
English Translation: Age-encrusted custom is not undeservedly cherished as having almost statutory force, and this is the kind of law which is said to be established by use and wont. For given that statutes themselves are binding upon us for no other reason than that they have been accepted by the judgement of the populace, certainly it is fitting that what the populace has approved without any writing shall be binding upon everyone. What does it matter whether the people declares its will by voting or by the very substance of its actions? Accordingly, it is absolutely right to accept the point that statutes may be repealed not only by vote of the legislature but also by the silent agreement of everyone expressed through desuetude.
German Translation: Althergebrachte Gewohnheit wird mit gutem Grund wie ein Gesetz befolgt, und dieses ist das Recht, von dem man sagt, daß es durch Sitte begründet ist. Denn wenn selbst die Gesetze aus keinem anderen Grund für uns bindend sind, als deswegen, weil sie durch die Entscheidung des Volkes angenommen sind, dann bindet zu Recht auch das alle Bürger, was das Volk ohne jede Schriftform gebilligt hat. Denn welchen Unterschied macht es, ob das Volk seinen Willen durch Abstimmung kundtut oder durch ein der sachlichen Regelung entsprechendes Verhalten? Daher nimmt man mit vollem Recht sogar an, daß Gesetze nicht nur durch Abstimmung des gesetzgebenden Volkes, sondern auch durch die auf stillschweigender Zustimmung aller beruhende Nichtanwendung außer Geltung gesetzt werden.
All the same, women have their share in the process of law-making, even if they are formally not allowed to vote. Again we can follow the tracks Peppe has traced. In the year 42 BCE Hortensia is not alone on the forum when she demands and achieves the abrogation of a law – many women have come along with her. There exist quite a few proofs with relation to Rome, in which the public female opinion is capable of making its voice heard and exerts considerable influence on court practice as well as legal findings, also by means of desuetudo.
1. – In Leo Peppe’s pages several references from the present and the recent past to ancient Rome’s legal culture are made, illustrating the complex and variable afterlife of antiquity in pictures, models, and thought patterns. Due to the lack of time, I cannot enter into the wealth of examples given in his book, but I can just touch one aspect which, however, might possibly constitute the common thread of his research.
In our discipline, the Roman law, it is common, as Peppe writes, to avoid any connection between the object of study and one’s personal history, in order to guarantee a maximum of objectivity with regard to focus, conception, and finality. However, immediately afterwards he abandons this imperative and informs the reader what motivated him to write the Civis Romana and why The Making of a Research should basically constitute a personal motivation in every case.
2. – Coming to the end of my considerations: What the author of Civis Romana did not explicitly tell the reader, could be revealed from the book’s motto (exergum). It is a quote from Family Furnishings, where Alice Munro explains her work as “more like grabbing something out of the air than constructing stories”.
The once unspecified Roman woman in Posizione giuridica e ruolo sociale, a book dedicated to Fiammetta, Leo’s wife, has now become a Civis Romana, actually two, because he dedicates this book to his grandchildren Cecilia and Flaminia, names that remind us of famous personalities in antiquity.
Again names can be found in the quotation stat Roma pristina nomine, nomina nuda tenemus, “And what is left of Rome is only its name, we just possess empty names” (varied by Umberto Eco into In nome della rosa; with many possible interpretations, by, among others, Bernhard of Cluny, De contemptu mundi, William of Champeaux or Johan Huizinga).
Lastly, the topos of female softness, weakness, ‘mollities’ derived from ‘mulier’. Among the Romans, the infirmitas sexus is first taken up in Cicero (Mur. 12,27); Varro and Columella connect it with the physical weakness of the sex, yet not with the moral one; this commonplace belief is passed on to Lactantius and Isidore. On its way to modern times, Peppe caught one of many followers, Shakespeare, with “Cymbeline”, where we read (vv. 447-453):
The piece of tender air, thy virtuous daughter,
Which we call ‘mollis aer’; and ‘mollis aer’,
We term it ‘mulier:’ which ‘mulier’ I divine
Is this most constant wife; who, even now,
Answering the letter of the oracle,
Unknown to you, unsought, were clipp’d about
With this most tender air.
Here, the girl or young woman is tender, but she becomes also a constant wife, not an imbecil (imbecillis).
Mollis aer, mulier, grabbing out of the air some virtuous daughter, a constant wife.
Furnished In- and Outdoor Family Histories.
3. – Leo Peppe’s Civis Romana impresses by its range, depth, and complexity, its interdisciplinary approach and methodical honesty, its sensitivity for the historical contexts and empathy for human beings. It consists of subtle case studies which together end up in a lush and exiting painting. It tells stories of women who do completely different things or do things completely different than the mainstream of knowledge production has noticed so far. Hence, we are here dealing with a study that does not recognise any limits, albeit it is very well aware of those of its own subject matter and of the related disciplines.
[Un evento culturale, in quanto ampiamente pubblicizzato in precedenza, rende impossibile qualsiasi valutazione veramente anonima dei contributi ivi presentati. Per questa ragione, gli scritti di questa parte della sezione “Tradizione Romana” sono stati valutati “in chiaro” dalla direzione di Diritto @ Storia]
* Written Version of the Lecture held at the Centro Italiano di Studi Superiori sulle Religioni (= CISSR) Bertinoro/Forlì 29th September 2017.
 For the competent, patient, and valuable translation I owe gratitude to Sebastian Puchas. Marlene Peinhopf provided helpful suggestions and corrections for the final version.
 Some legal sources are collected by M. CASOLA, “Armatrici e marinaie nel diritto romano”, Quaderni del Dipartimento Jonico 1 (2015) 3-18 (http://www.annalidipartimentojonico.org/sct/index.php?option=com_docman&task=doc_download&gid=1&Itemid=16) [21.10.2017].
 Gell. 4.14. For this episode, see L. PEPPE, Posizione giuridica e ruolo sociale della donna romana in età repubblicana, Milano, Giuffrè, 1984, 114-115.
 L. PEPPE, Civis Romana. Forme giuridiche e modelli sociali dell’appartenenza e dell’identità femminili in Roma antica (Colección Leda 8), Lecce, Edizioni Grifo, 2016, 234-237; PEPPE, “Women”, 35-36.
 AE 2010, 620, CIL 6.32414. P. RUGGERI, “La Vestale Massima Flavia Publicia: una protagonista della millenaria Saecularis Aetas”, in J. Cabrero Piquero, L. Montecchio (eds.), Sacrum Nexum. Alianzas entre el poder político y la religión en el mundo romano, Madrid - Salamanca, Signifer Libros, 2015, 165-189.
 The syntagm materna auctoritas is only to be found in Ascon. Scaur. (Stangl 23) where it serves to express the influence wielded by the stepsister Servilia upon the young Cato Uticensis. PEPPE, Civis Romana, 106 fn. 243. However, also Quint. inst. 6.5.9 and Suet. Vesp. 2.2 refer to the maternal auctoritas.
 J.K. EVANS, War, Women, and Children in Ancient Rome, London, Routledge, Chapman & Hall, Incorporated, 1991 (= 2014), 188. In the section entitled “Patria potestas, materna auctoritas” (177-195) the significant say mothers had in the upbringing of their children is stressed.
 For basic details about auctoritas see M. BETTINI, “Alle soglie dell’autorità”, in B. Lincoln, L’autorità, Torino, Einaudi, 2000, I-XXXIV.
 M. DE SIMONE, “Una congettura sull’arcaico filiam abducere”, in AUPA 55 (2012) 321-384, 358. PEPPE, Civis Romana, 133, 173-174, concerning the interdict de liberis exhibendis et ducendis and the Gl. Matremfamilias ad I. 4,4,1.
 Concerning ‘matria’ potestas cf. G. RIZZELLI, Padri romani. Discorsi, modelli, norme, Lecce, Edizioni Grifo, 2017, 112 fn. 270.
 M.E. Roccia, “La costruzione giuridica dell’identità materna in Ulp. 38 ad Sab. D. 27.10.4”, in A. Corbino, M. Humbert, G. Negri (edd.), Homo, caput, persona. La costruzione giuridica dell’identità nell’esperienza romana. Dall’epoca di Plauto a Ulpiano (Pubblicazioni del CEDANT, 6), Pavia, IUSS Press, 2010, 273-281, argues that the mother’s potestas mentioned in the passus, in connection with auctoritas, is “un potere formale”. More cautiously Peppe, Civis Romana, 93, 106 fn. 243.
 A. WATSON (ed.), The Digest of Justinian. I, Philadelphia / Pennsylvania, University of Pennsylvania Press, 1985, 13.
 O. BEHRENDS, R. KNÜTEL, B. KUPISCH, H.H. SEILER, Corpus Iuris Civilis. Text und Übersetzung. II. Digesten 1-10, Heidelberg, C.F. Müller Juristischer Verlag, 1995, 115.