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Echos du Monde Classique/Classical Views XXXIX, n.s. 14, 1995,377-400 GENDER-RoLE ASSUMPTIONS IN ROMAN LAW JANE F. GARDNER Women are an inconvenient anomaly in Roman law; they appear almost as an afterthought. The whole system is framed in terms of a legal construct, the familia, and in terms of interaction between male heads of familia. The familia itself, which consists both of property and of free persons, is defined in terms of dependence from and exclusive control by a biological male, the paterfamilias, who doubles the role of owner of the property and biological or adoptive ascendant of the persons. As Ulpian explains the death of a pater releases those in his potestas, who each then begin to have a familia; but since a woman cannot have potestas, her familia consists solely of herself and her property.l It cannot include free descendants; this is the central asymmetry of Roman law. This has two consequences for women. One is that in family law there is a sharp distinction between the gender roles of men and women. A woman's role in relation to the familia of her husband largely coincides with her biological role as mother in the family; she is an outsider to his familia, and so she lacks legal authority within the family. Secondly, outside the family, although for most practical purposes women have the legal status of honorary males (qua heads of a one-person familia), they are excluded from certain areas of legal interaction between male heads of familia, to some of which gender is not obviously relevant. The reason for this exclusion is that only males have potestas--eontrol over other free persons (of either sex)so that a woman can never be a paterfamilias in the full sense, merely a property-owner.2 The result is that women are marginalised, on legal grounds, both inside and outside the family. The purpose of this paper is to explore other ways in which women are marginalised, not in their capacity for legal action, but in words, in the thinking and expression of the men who formulate and I Dig. 50.16.195.2: cum pater familias moritur, quotquot capita ei subiecta fuerint, singulas familias incipiunt habere . ... Mulier autem familiae suae et caput et finis est. ("When a paterfamilias dies, all those persons in his potestas each begin to have a familia . .. Now a woman is the beginning and end of her familia.") 2 For the legal status of women in Roman society, see Gardner 1993, ch. 4. 377 378 JANE F. GARDNER interpret Roman law, often even without justification in any specific rule of law. Sometimes non-legal stereotypes are brought in to support legal rules-or even cited in their place. There was a lay perception of women as biologically inferior, mentally as well as physically, to men and as naturally subordinate to them. This was reinforced by their legal situation, to the extent that, as a number of scholars have already observed,3 legal writers can actually be found citing these stereotypes as rationale for certain legal rules limiting women's legal capacity. Another feature, which makes difficulties for modern historians trying to gauge the actual extent of women's economic and legal activity in Roman society, is that while there is extensive overlap between the legal capacity of Roman women and men, and relatively few (though important) areas are reserved to men, Latin legal writers, like users of Latin in general, habitually make use of masculine forms. This phenomenon is observable in other languages and societies, and is a matter of convenience, rather than tendentious purpose; it does, however, mask female action. First, certain linguistic habits of Roman legal writers will be examined, in order to draw attention to the ways in which these reinforced hierarchical assumptions about the roles actually exercised by men and women in Roman society, and especially to the way they concealed and thus minimised awareness of the potential or actual presence and activity of women. Secondly, a few specific instances will be pointed out where interpretation of the law is based on such hierarchical assumptions, rather than on a legal rule (even where a...

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