In lieu of an abstract, here is a brief excerpt of the content:

215 Chapter 9 Gender and the Roman Law of Obligations* Nikolaus Benke Framework of This Chapter The topic of gender and the Roman law of obligations requires exploring the relationship of two normative systems: gender consists of normative constructions , and so does law. The two normative systems are closely interrelated; one reflects and influences the other. This chapter analyzes legal cases and provisions within the framework of gender constructions in ancient Rome. On Gender as a Means of Structuring Society Gender is understood as the set of rules that makes us perceive a person as a woman or as a man and that makes us assume that certain qualities are feminine whereas others are masculine. The genders are rooted in what we call the male sex and the female sex, but they are not confined to the biology of the sexes.1 This becomes obvious when a person deviates from what is considered * I would like to express my deep gratitude to Tom McGinn for inviting me to the 2008 conference on Roman law held at the American Academy in Rome, for being a wonderful host, and for effecting the publication of our papers in this volume. My special thanks go to Margaretha Debrunner, Viktor Falschlehner, Birgit Forgó-Feldner, Verena Halbwachs, Elisabeth Holzleithner , Philipp Klausberger, and Peter Steindl, who contributed substantially to this essay. A few exemplary sources are mentioned in the main text. A selection of other relevant sources and translations can be found in the appendix at the end of this chapter. 1. Academia fosters a lively debate on the meanings and the relationship of gender and sex. This is not the place to enter that debate. A quite instructive (although simplifying) sketch of the meanings of sex and gender can be found on the website of the World Health Organization, http://www.who.int/gender/whatisgender/en/index.html. 216 Obligations in Roman Law a “regular” man or a “regular” woman—either in physical terms (e.g., due to a disorder of sexual differentiation)2 or in performative terms (e.g., being transgender3 or homosexual).4 There are various cultural techniques available to structure society.5 One way of structuring consists in creating classes and class differences—­ social classes and/or legal classes.6 Another way of structuring society consists in creating gender and gender differences.7 Like class, gender positions a person in society and thus directs or determines to what extent the individual will enjoy freedom, power, and equality. In modern gender studies, the so-­ called intersectional approach has 2. Roman law provides that a hermaphrodite be classified as a man or as a woman according to the majority of physical features indicating male or female sex. See Ulp. (1 ad Sabinum) D. 1.5.10 (see appendix). 3. Three definitions of transgender are offered at the website of the Transgender Education Network of Texas, https://transtexas.org/index.php?option=com_content&view=article&id=46 &Itemid=56>&view=article&id=46&Itemid=56: “Transgender Education Network of Texas defines the term transgender as a community of people whose gender identity, expression or behavior is different from those typically associated with their assigned sex at birth, including but not limited to transsexuals, crossdressers, androgynous people, genderqueers, and gender non conforming people. Transgender does not imply any specific form of sexual orientation; transgender people may identify as heterosexual, homosexual, bisexual, pansexual, polysexual , or asexual.” 4. See the “deviation” issue in the famous criminalization of male homosexuality by Constantius and Constans at CTh. 9.7.3 (342). According to these emperors, the conjunction of a man with a man creates a situation in which the (male) sex has lost its stance (ubi sexus perdidit locum), in which emerges an outrage that there is no benefit to know (ubi scelus est id, quod non proficit , scire), in which Venus changes to another form (ubi Venus mutatur in alteram formam) in which love is sought after but does not appear (ubi amor quaeritur, nec videtur). 5. For example, age can be used as a criterion of inclusion and exclusion. In the recent past, discrimination on the grounds of age has become an issue. Since 2000, the directive 2000/78/EG forbids (among other things) discrimination on the grounds of age in the European Union. See, for example, a recent decision of the European Court of Justice: ECJ 19.01.2010 C-­ 555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG. 6. For example, when it comes to sanctions, Roman criminal law often makes a distinction between...

Share