LEO PEPPE, EVELYN
HÖBENREICH, PATRIZIA
GIUNTI, VALERIO MAROTTA
Discussion* of the book of Leo Peppe, Civis Romana**
* During the Annual Meeting on Christian Origins of the Italian Centre for
Advanced Studies on Religions (CISSR), Bertinoro, FO, September 29, 2017.
** Leo Peppe, Civis Romana. Forme
giuridiche e modelli sociali dell’appartenenza e
dell’identità femminili in Roma antica, Lecce, Edizioni Grifo,
2016.
EVELYN HÖBENREICH
University of Graz
evelyn.hoebenreich@uni-graz.at
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[1].
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.
I. – Filling Gaps: The Making of
Leo Peppe’s Civis Romana
II. – Antiquity: Some Highlights
and some Remarks
III. – Past and Present: Modern and
Contemporary Aftermath
I. – Filling
Gaps: The Making of Leo Peppe’s Civis Romana
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[2], 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[3].
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.
II. – Antiquity:
Some Highlights and some Remarks
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”[4].
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.[5] 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)[6].
2. – I would like to elaborate on the point of
female power and authority a little further. Patria potestas, materna auctoritas[7]
a section in a recent publication is
titled[8]. 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. 43.30.3.6 with respect to
this case, i.e., her undeniable and undisputed authority[9]
which refers to the external, public sphere, besides her equally necessary impeccable
conduct of life in the private, family-related sphere of the house[10].
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[11].
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[12].
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[13].
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[14].
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. 1.3.32.1: 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[15].
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[16].
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[17].
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[18].
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.
III. – Past and
Present: Modern and Contemporary Aftermath
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[19].
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[20].
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.