University of Florence
Identity, Belonging, Citizenship.
The Boundaries of the Status of Women*
Dear Colleagues, the first task I feel it incumbent on me to fulfil is to express thanks: thanks to the organisers of the CISSR Annual Meeting and in particular to Professor Mauro Pesce for this invitation, which I am honoured by, and which, at the same time, allows me to meet with dear friends and talk about a subject that continues to exert strong fascination over me, despite the passing of years. However, my thanks must immediately be followed by apologies.
I apologise for the fact that, due to the overlapping of tasks burdening the Head of a Department, I was unable to attend the first session of the meeting and because the considerations I will now present are absolutely fragmentary, especially when compared to the presentations of those who have preceded and will follow me.
I can say that I interpret my presence here today as an opportunity to make public my full and convinced appreciation for this work by Leo Peppe: an appreciation that I privately expressed to Leo exactly one year ago, just a few weeks after the book came out, when I spontaneously manifested to him all my admiration for this work which, far from being a purely recognitive collage, a simple overview of previous contributions, represents an authentic, courageous global rethinking, thirty years after Leo’s ‘pioneering’ debut, on the subject of the female condition in Rome. An extraordinarily complex subject because, as Evelyn pointed out a short while ago, gender studies have enjoyed overwhelming success precisely in the past thirty years, with an interdisciplinary emphasis and contributions ranging from ideological pamphlets to thorough scientific investigations. It is not simple, therefore, to orient oneself in this highly varied realm in order to find a key to interpreting the boundaries of feminine subjectivity in Rome: a key that Leo Peppe has found in the term civis, leading him to entitle his book civis Romana.
Leo is right: the title does not belong to the book, it expresses a whole set of meanings that go beyond the contents of the book itself. Just as, I could add, the book does not belong to its author, because, following its publication, there exist as many books as there are readers. Well, the first consideration I would like to share with you arises precisely from the idea suggested to me by the title “Civis Romana”.
According to a fragment attributed to Varro, a 1st century BC antiquarian and philologist, in his de lingua Latina, “it is in our power to attribute gender to those things that by nature do not have one” and in any event “no animated being can take the neuter gender”. Attributing a gender to a given entity which, if animated, can never be neuter, is therefore a matter of choice (we might say political choice): and this conclusion leads us immediately to consider the fact that belonging to the citizenry was expressed by a term that shows no gender diversification: civis is a common noun, invariable, whose scope of meaning embraces the civis as a man and the civis as a woman. In contrast with modern declarations of rights, which make explicit reference to the male gender (one example may suffice: the Déclaration universelle de droits de l’homme), even inciting some to draft a polemical Declaration of the Rights of Women; in contrast with the political lexicon of ancient Athens, which envisaged two different gender suffixes for members of the citizenry (polites-politis), the Latin political-legal vocabulary recognised a common, indistinct civic identity (civis) and thus seems to have proposed a model of fungibility and equal standing between the two sexes, where the scope of male citizenship perfectly overlapped with the scope of female citizenship.
But that was not the case.
Notwithstanding that the specialised literature repeatedly underscores the different condition, the different ‘dignity’ of Roman women compared to Greek women, who were both ideologically and materially relegated to the role of passive reproducers, and despite the existence of a further process of “emancipation” enjoyed by Roman women toward the end of the Republic and during the first two centuries of the Empire, there can be no doubt that women’s legal status in Rome was painted with the colours of discrimination, within a horizon of limitations, both as regards their control over their subjective situations and above all in their power to exercise their rights. This is clearly attested by Papinianus in his Quaestionum Libri:
D. 1.5.9 (Pap. 31 quaest.): In multis iuris nostri articulis deterior est condicio feminarum quam masculorum”.
Equally evident, and agreed among legal scholars, is the fact that such discriminations were particularly pronounced in the realm of public law, in relation to what today we call ‘first generation rights’, political and civil rights. Roman women did not participate in legislative and electoral assemblies, and thus had no part in political decision-making: we are informed of this by an erudite man of letters, Aulus Gellius:
Noctes Atticae, 5.19.10: Neque pupillus autem neque mulier, quae in parentis potestate non est, adrogari possunt: quoniam et cum feminis nulla comitiorum communio est...
On the other hand, the fact was confirmed by the jurist Gaius in his Institutiones, who excluded women from the adrogatio that took place before the assembly:
Gai 1.101: Item per populum feminae non adoptantur, nam id magis placuit.
Similarly, Roman women could neither hold public offices nor accede to the role of magistratus, nor take part in judicial activity as judge (iudex):
D. 50.17.2 (Ulp. 1 ad Sab.): … et ideo nec iudices esse possunt nec magistratum gerere …
Moreover, Roman women could not intervene in court proceedings with functions of assistance (postulare pro aliis):
D. 126.96.36.199 (Ulp. 6 ad ed.): sexum: dum feminas prohibet pro aliis postulare. et ratio quidem prohibendi, ne contra pudicitiam sexui congruentem alienis causis se immisceant, ne virilibus officiis fungantur mulieres.
D. 50.17.2 (Ulp. 1 ad Sab.): … nec postulare nec pro alio intervenire nec procurators existere.
Likewise, women could not engage in financial intermediation, secure the debts of others or act as bankers (argentarii):
D. 2.13.12 (Call. 1 ed. mon.): Feminae remotae videntur ab officio argentarii, cum ea opera virilis est.
In short, to use the words of Ulpian, women were excluded from all public functions and from all civil roles:
D. 50.17.2 pr. (Ulp. 1 ad Sab.): Feminae ab omnibus officiis civilibus vel publicis remotae sunt.
Passing from the words of the jurist to the words of the historian Livius, this total segregation of women from male functions, be they political or religious (“Non magistratus nec sacerdotia nec triumphi nec insignia, nec dona aut spolia bellica”), was what determined the division of roles between the two sexes, relegating women to a universe in which outwardness, and devotion to their appearance and clothing (“ornatus et cultus, haec feminarum insignia ... hunc mundum muliebrem”) predominated:
Liv., 34.7: quid muliercularum censetis, quas etiam parva movent? non magistratus nec sacerdotia nec triumphi nec insignia nec dona aut spolia bellica iis contingere possunt: munditiae et ornatus et cultus, haec feminarum insignia sunt, his gaudent et gloriantur, hunc mundum muliebrem appellarunt maiores nostri.
So is this the final picture? Was there a precise distinction of roles, based on precise boundaries between the gender identities underlying the single term civis?
There was not.
An overall examination of the documental sources available to us, Leo Peppe’s work demonstrates, shows us a female status that spanned, in concrete terms, significant legal, social and cultural areas. Roman women, in actual fact, were able to rely on the assembly institutions to ensure their personal inviolability, played roles with functions of responsibility in many municipal or provincial contexts, as well as in religious practices and ceremonies, autonomously or alongside male counterparts with religious authority, and had an evident inclination towards entrepreneurship, enabling them to amass wealth and use substantial economic resources for initiatives of public interest, a phenomenon we call ‘euergetism’.
But how can we explain this inversion of perspective compared to what we saw earlier? What can we infer from this inclusion/exclusion dialectic, given such a complex picture? This is precisely the second reflection I would like to share.
The key to interpretation is offered by a paragraph of Leo Peppe’s book, Roma: una società di diseguali (Rome: a Society of Unequals).
The Roman system was the result of a veritable operation of social architecture: it was an edifice, resting on the foundations of the summa divisio between slaves and free citizens, and was technically supported by a structure built on multiple levels of identity, each of which was simultaneously superior and inferior to others (consider, for example, the segmentation of the class of the Latini): reciprocal interplay was made possible not only by the ‘social ladder’ (a slave could become a freedman and citizen, climbing from the bottom rung to the top), but also by an internal mobility within individual social classes: a mobility that, in the presence of specific economic needs or changing cultural messages, was capable of disrupting the boundaries defining each status and thus bring about a change in political policies (a slave was a res and yet under certain conditions could conclude valid contracts), so that hierarchical equilibriums could be redefined, but never suppressed, or else the stability of the entire construction would be lost.
Among the many pieces of evidence we may find, there is one that highlights this need to define the reciprocal relationship among the different gender subdivisions:
D.1.9.1 (Ulp. 62 ad ed.): Consulari feminae utique consularem virum praeferendum nemo ambigit. sed vir praefectorius an consulari feminae praeferatur, videndum. putem praeferri, quia maior dignitas est in sexu virili.
We have before us a system in which discrimination is an authentic political and legal strategy, in which complexity is an instrument of government. Our difficulty in comprehending such a system lies in the necessity of inverting our perspective. Modernity knows the paradigm of formal equality among individuals, which conceals the areas of substantial inequality, the inequality of life. The Roman experience knew the paradigm of formal inequality, where underlying conditions could give rise to a substantial parification, an equal standing among different classes.
In the case of the female gender, what were the conditions for the social and legal permeability of this status? There is one criterion pointed out by legal theorists and which, in my opinion, does in fact emerge with considerable insistence: mulieris virilitas, the women’s virtue in interpreting the conceptual models of male virtue. As the ancient tradition also confirmed in numerous episodes, lying somewhere between history and legend, it was not simply that women were capable of showing courage and military attitudes, but they were also able to adopt the virile model in a way that neither subverted the feminine role nor diminished the masculine role.
In my view, the clearest example comes from the representation offered by Valerius Maximus of episodes in which a woman engaging in forensic oratory – an activity that, as we have seen, was forbidden – could actually be worthy of praise: as in the case of Maesia, who, when brought to trial, personally defended herself before the praetor and jury, and was thus granted an acquittal: according to Valerius Maximus, Maesia concealed a virile soul behind the appearance of a woman (“quia sub specie feminae virile animum gerebat”).
However, a very different judgment was passed on Afrania, who was assigned the worst attribute: a monstrum. Her petulance and impudence in court, according to Valerius Maximus, made her the personification of feminine intrigue (“adsidue tribunalia exercendo muliebris calumniae notissimum exemplum evasit”). The stereotype of female negativity therefore (“adeo ut pro crimine improbis feminarum moribus C.Afraniae nomen obiciatur”), such as to diminish, rather than elevate, the masculine role: Afrania’s husband was given a name that mocked him for his inability to restrain his wife: Licinius Bucco.
On the other hand, even more explicit is the account of the most famous episode involving Hortensia, daughter of the well-known orator Hortensius, who spoke before the triumvirs to defend her own and other women’s right not to be burdened with taxes, given that they were excluded from political decision-making: Hortensia’s initiative would be rewarded, because the woman replicated her father’s eloquence with her words, evoking his ghost, bringing him back to life in a certain way (“revixit tum muliebri stirpe Q. Hortensius verbisque filiae aspiravit”):
Val. Max. 8.3.3: Hortensia vero Q.Hortensi filia, cum ordo matronatrum gravi tributo a triumviris esset oneratus nec quisquam virorum patrocinium eis accomodare auderet, causam feminarum apud triumviros et constanter et feliciter egit: repraesentata enim patris facundia impetravit ut maior pars imperatae pecuniae his remitteretur. Revixit tum muliebri stripe Q.Hortensius verbisque filiae aspiravit, cuius si virilis sexus posteri vim sequi voluissent, Hortensianae eloquentiae tanta hereditas una feminae actione abscissa non esset.
The ability of woman to carry out a function ‘virilely’, interpreting the canons of virility in a fully observant manner, without diminishing their value and without superimposing a feminine specificity upon them, was thus the price for being placed on an equal social footing and overcoming the legal barrier. This explains why the only legal frontier that could not be crossed was the one related to the role for which no substitutive parity was imaginable: family power.
To use the words of Eva Cantarella, we could say it is almost a ‘paradox’ (one of the many that the study of the female condition reveals) that the scope of this common ‘citizenship’, this being a civis, saw its most radical limit in the realm in which the female figure encountered its utmost exaltation, but in which women’s legal marginalisation was greatest: the family. The place in which social recognition was most clearly evident, in the sense of the functions and consequent responsibilities assigned to women, was also the place where the distinction of roles was more entrenched, in the sense not only of their complementarity, but also of their radical non-fungibility: the pact between the sexes that lay at the basis of the family structure allowed no parity: greater power of the man on the one hand, the internal, instrumental role of the woman on the other. The true legal barrier never overcome by women, even through a process of substantial homologation, was thus the patria potestas. The most explicit witness, once again, was the jurist Gaius in his Institutiones:
Gai 1.104: Feminae vero nullo modo adoptare possunt, quia ne quidem naturales liberos in potestate habent.
Leo Peppe’s book clearly captures this aspect, as he makes reference to Cicero’s fundamental account in De re publica:
Cic. De rep.1.43.67: et hoc malum usque ad bestias perveniat, denique ut pater filium metuat, filius patrem neclegat, absit omnis pudor, ut plane liberi sint, nihil intersit civis an peregrinus, magister ut discipulos metuat et iis blandiatur, spernantque discipuli magistros, … uxores eodem iure sint quo viri…
From this piece of evidence it emerges that affirming that a husband and wife had the same rights, possessed an identical legal status, would have been tantamount to subversion, an unimaginable overthrow of the existing social order: the first step of a destructive political process “ex quo leges quque incipiunt neclegere, ut plane sine ullo domino sint”.
In that way the boundaries of the women’s legal status in Rome were drawn, within the relationship of husband and wife, iusti coniuges.
[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]
* In order to maintain the same tone of the conversation, I didn’t change anything of my speech. I have just added some quotations of sources and very few bibliographic references.
 L. PEPPE, Posizione giuridica e ruolo sociale della donna romana in età repubblicana, Milano, Giuffré, 1984.
 Varro, de ling.Lat. 9.6 (frag.): Potestatis nostrae est illis rebus dare genera, quae ex natura genus non habent.
 Cf. N. LORAUX, Grecia al femminile, Roma-Bari, Laterza, 1993, 125 ff.; E. CANTARELLA, “Identità, genere e sessualità nel mondo antico”, in (A. Corbino-M. Humbert-G. Negri eds.) Homo, caput, persona. La costruzione giuridica dell’identità nell’esperienza romana (dall’epoca di Plauto a Ulpiano), Pavia, IUSS Press, 2010, 84 ff.
 See, among many others, R. VIGNERON-J.F. GERKENS, “The Emancipation of Women in Ancient Rome”, RIDA 47 (2000) 107 ff.
 See, for further references, P. GIUNTI, “Il ruolo sociale della donna romana di età imperiale: tra discriminazione e riconoscimento”, Index 40 (2012) 342 ff.
 Cf. PEPPE, Civis Romana, 202 ff. See too, on the same topic, F. MERCOGLIANO, “Deterior est condicio feminarum ...”, Index 29 (2001) 209 ff.; ID., “La condizione giuridica della donna romana: ancora una riflessione”, Teoria e Storia del Diritto Privato 4 (2011) 1 ff.
 “..una sintesi (quasi) perfetta” (an almost perfect synthesis), according to Leo Peppe’s words (Civis Romana, 301).
 Cf. R. BERG, Wearing Wealth. Mundus muliebris and ornatus as Status Markers for women in the Roman Empire, Roma, Institutum Romanum Finlandiae, 2002, 15 ff. For more details about the lex Oppia and its abrogation see P. DESIDERI, “Catone e le donne (Il dibattito liviano sull’abrogazione della lex Oppia)”, Opus 3 (1984) 63 ff.; F. GORIA, “Il dibattito sull’abrogazione della lex Oppia e la condizione giuridica della donna romana”, in La donna nel mondo antico. Atti del Convegno Nazionale di Studi (Torino, 1986), Torino, Reg. Piemonte – C.E.L.I.D, 1987, 265 ff.; E. M. AGATI MADEIRA, “La lex Oppia et la condition juridique de la femme dans la Rome républicaine”, RIDA 51 (2004) 87 ff.; I. MASTROROSA, “Speeches pro and contra Women in Livy 34, 1-7: Catonian Legalism and Gendered Debates”, Latomus 65 (2006) 590 ff.
 See K. MANDAS, “Independent Women in the Roman East: Widows, Benefactresses, Patronesses, Office-Holders”, Eirene 33 (1997) 81 ff.
 See E.A. HEMELRIJK, “Priestesses of the Imperial Cult in the Latin West: Titles and Function”, L’Antiquité Classique 74 (2005) 137 ff.
 See J. SCHEID, “Les roles religieux des femmes à Rome. Un complement”, in (R. Frei-Stolba-A. Bielman-O. Bianchi eds.) Les femmes antiques entre sphère privée et sphère publique, Berne, P. Lang, 2003, 137 ss.
 S. DIXON, “Women’s work: perceptions of public and private”, in EAD., Reading Roman Women. Sources, Genres and Real Life, London, Duckworth, 2001, 113 ff.; F. LAMBERTI, “Ricchezze e patrimoni femminili in Apuleio”, in EAD., La famiglia romana e i suoi volti. Pagine scelte su diritto e persone in Roma antica, Torino, Giappichelli, 2014, 103 ff.
 See, among many others, E.A. HEMELRIJK, “City Patronesses in the Roman Empire”, Historia 53 (2004) 209 ff.
 Gai 1.9: Et quidem summa divisio de iure personarum haec est, quod omnes homines aut liberi sunt aut servi.
 See, e.g., S. RODOTÀ, La vita e le regole. Tra diritto e non diritto, Milano, Feltrinelli, 28 and passim.
 Cf. E.A. HEMELRIJK, “Masculinity and Femininity in the Laudatio Turiae”, Classical Quarterly 51-1 (2004) 185 ss.
 Cf. D. 188.8.131.52 (Ulp. 6 ad ed.): … origo vero introduca est a Carfania improbissima femina, quae inverecunde postulans et magistratum inquietans causam dedit edicto. See, for more details, L. LABRUNA, “Un editto per Carfania?”, in Synteleia Arangio-Ruiz, Napoli, Jovene, 1964, 415 ff.; E. CANTARELLA, Passato prossimo. Donne romane da Tacita a Sulpicia, Milano, Feltrinelli, 1996, 94 ff.; F. LAMBERTI, “ ‘Sub specie feminae virilem animum gerere’: sulla presenza delle donne romane in ambito giudiziario”, in (E. Höbenreich-V. Kühne-F. Lamberti eds.) El Cisne II. Violencia, proceso y discurso sobre género, Lecce, Edizioni Grifo, 2012, 189 ff.
 Cf. E. CANTARELLA, “La vita delle donne”, in (E. Gabba-A. Schiavone eds.) Storia di Roma IV. Caratteri e morfologie, Torino, Einaudi, 1989, 606 ff.
 E.g. CIL 1.2.1211: “….Nomen parentes nominarunt Claudiam suom mareitum corde dilexit sovo. Gnatos duos creavit ... ; Tac. Dial. de orat. 28.4: … sed gremio ac sinu matris educabatur, cuius praecipua laus erat tueri domum et inservire liberis. See, for further references, GIUNTI, Il ruolo sociale della donna romana di età imperiale, 342 ff.
 Cf. M. FOUCAULT, La cura di sé. Storia della sessualità III, It. tr. Milano, Feltrinelli, 2006, 161.