Legal Rights of Women in History - Roman Law

Roman Law

For more details on this topic, see Women in ancient Rome.

Freeborn women of ancient Rome were citizens who enjoyed legal privileges and protections that did not extend to non-citizens or slaves. Roman society, however, was patriarchal, and women could not vote, hold public office, or serve in the military.

A child's citizen status was determined by that of its mother. Both daughters and sons were subject to patria potestas, the power wielded by their father as head of household (paterfamilias). At the height of the Roman Empire (1st–2nd centuries), the legal standing of daughters differs little if at all from that of sons. Girls had equal inheritance rights with boys if their father died without leaving a will.

In the earliest period of the Roman Republic, a bride passed from her father's control into the "hand" (manus) of her husband. She then became subject to her husband's potestas, though to a lesser degree than their children. This archaic form of manus marriage was largely abandoned by the time of Julius Caesar, when a woman remained under her father's authority by law even when she moved into her husband's home. Her husband had no legal power over her, and when her father died, she became legally emancipated (sui iuris). A married woman retained ownership of any property she brought into the marriage. There was little stigma attached to divorce, though it was a point of pride to have been married only once.

A Roman mother's right to own property and to dispose of it as she saw fit, including setting the terms of her own will, enhanced her influence over her sons even when they were adults. Because of their legal status as citizens and the degree to which they could become emancipated, women could own property, enter contracts, and engage in business.

Roman women could appear in court and argue cases, though it was customary for them to be represented by a man. An edict limited women to conducting cases on their own behalf instead of others', but even after it went into effect, there are numerous examples of women taking informed actions in legal matters, including dictating legal strategy to their male advocates.

As in the case of minors, an emancipated woman had a male guardian (tutor) appointed to her. She retained her powers of administration, however, and the guardian's main if not sole purpose was to give formal consent to actions. The guardian had no say in her private life, and a woman sui iuris could marry as she pleased. A woman also had certain avenues of recourse if she wished to replace an obstructive tutor. The practice of guardianship gradually faded, and by the 2nd century the jurist Gaius said he saw no reason for it.

The first Roman emperor, Augustus, attempted to regulate the conduct of women through moral legislation. Adultery, which had been a private family matter under the Republic, was criminalized, and defined broadly as an illicit sex act (stuprum) that occurred between a male citizen and a married woman, or between a married woman and any man other than her husband. That is, a double standard was in place: a married woman could have sex only with her husband, but a married man did not commit adultery when he had sex with a prostitute, slave, or person of marginalized status (infamis). Childbearing was encouraged by the state: the ius trium liberorum ("legal right of three children") granted symbolic honors and legal privileges to a woman who had given birth to three children, and freed her from any male guardianship.

Roman law recognized rape as a crime in which the victim bore no guilt. Rape was a capital crime. As a matter of law, however, rape could be committed only against a citizen in good standing. The rape of a slave could be prosecuted only as damage to her owner's property. Most prostitutes in ancient Rome were slaves, though some slaves were protected from forced prostitution by a clause in their sales contract. A free woman who worked as a prostitute or entertainer lost her social standing and became infamis, "disreputable"; by making her body publicly available, she had in effect surrendered her right to be protected from sexual abuse or physical violence.