CASE 225: The Weaker Sex?
Gaius, Institutiones 1.190-191
(190) Feminas vero perfectae aetatis in tutela esse fere nulla pretiosa ratio suasisse videtur; nam quae vulgo creditur, quia levitate animi plerumque decipiuntur et aequum erat eas tutorum auctoritate regi, magis speciosa videtur quam vera; mulieres enim, quae perfectae aetatis sunt, ipsae sibi negotia tractant, et in quibusdam causis dicis gratia tutor interponit auctoritatem suam; saepe etiam invitus auctor fieri a praetore cogitur.
(191) Unde cum tutore nullum ex tutela iudicium mulieri datur; at ubi pupillorum pupillarumve negotia tutores tractant eis post pubertatem tutelae iudicio rationem reddunt.(Gaius in the first book of his Institutes)
(190) There is, to be sure, no very good reason for adult women being in tutelage. The reason that is commonly given, namely that since they are frequently deceived through their weak judgment (levitas animi), they are rightly controlled by the authority of tutores, seems more specious than true, since adult women handle their business matters for themselves, and in certain situations the tutor grants his authorization (merely) as a matter of form. Often he is compelled by the praetor to give authorization even against his will.
(191) For this reason a woman with a tutor has no action on tutelage. By contrast, tutores who manage the affairs of male or female minors give an accounting of their tutelage under the actio tutelae when those children reach the age of majority.
1. Levitas Animi.
This phrase, translated “weak judgment” (other possibilities are “unreliability, inconstancy, fickleness, shallowness of mind”), was used by laypersons to justify the permanent tutelage of adult women; sentiment to this effect is common in ancient authors (almost all male, of course). Is this simply a misogynistic slur? What other justification can be given for womens tutelage? Could one argue, for example, that their exclusion from public life (see Section 2 below) left them vulnerable to the predatory behavior of others? Tit. Ulp. 11.1 justifies the tutelage of women on the basis of “the weakness of their sex and their ignorance of judicial business.”2. The “Good Old Days.” At Inst. 1.144, Gaius explains women's tutelage in more historical terms: “For the ancestors (veteres) wanted women, even adult women, to be in tutelage because of their levitas animi.” (Compare Cicero, Pro Murena 27: “Our ancestors wanted all women to be under a tutor’s power because of the weakness of their judgment.”) For Gaius, the “ancestors” (veteres) are probably Republican jurists, perhaps also prejuristic political and legal authorities. Is Gaius hinting that the institution was an archaic holdover? If so, why didn't later jurists move to end it? As Gaius also points out (ibid. 145), even the veteres conceded freedom from tutelage to the women chosen as Vestal Virgins, an exemption confirmed by the Twelve Tables. Was this a reward or a punishment?
3. The Weaker Tutor. Gaius, evidently drawing on personal observation, refutes the thesis of levitas animi by pointing out that in certain situations the tutor’s authorization is only a matter of form and that often the praetor compels it to be given. Does his language (“in certain situations,” “often”) suggest that there were instances where a tutor’s authorization still meant something? Keep in mind that female Romans were deemed adults from the age of twelve years.
Do these considerations support resort to a modified form of female tutelage or one limited in scope? Were there viable alternatives to tutela mulierum? Many young women between the ages of twelve and twenty-five had both a tutor and a curator; see above, Part A.2.4. Exemptions. As Gaius also observes (Inst. 1.145, 194), under Augustus's law on marriage women with (depending on the case) three or four children were exempt from tutelage. Were such women presumptively less likely to be deceived? If not, what does the exemption indicate about how seriously the requirement of tutelage was taken during the early Roman Empire?
5. No Marriage? A tutor was almost invariably male (Case 231). A senatusconsultum passed under Marcus Aurelius and Commodus (coreign: A.D. 175-180) prohibited marriage between a tutor and a woman who had been his minor-age ward (pupilla). What was the reason for this ban? Does it seem likely to have been applied to marriage between adult women and their guardians? Why or why not?
6. No Accounting. As Gaius says, a woman, unlike a juvenile ward, cannot sue her tutor for malfeasance. Does this seriously compromise her legal protection? If, beyond his usual duties, a womans tutor undertook at her request to manage all or part of her affairs, he would be liable for his acts like any other manager.
7. Compelling Authorization. What sorts of situations would provoke the praetor to force a tutor to lend his authority to a transaction by his female ward? The Augustan marriage legislation prohibited a pater familias from wrongfully preventing children in his power from marrying or from wrongfully refusing to constitute a dowry for a daughter-in-power (Marcian, D. 23.2.19); evidently, enforcement was extended to the provinces through a senatusconsultum sponsored by Severus and Caracalla (coreign: A.D. 197-211). Likewise, it provided for praetorian appointment of a replacement tutor to establish a dowry for a woman whose tutor was a minor (Gaius, Inst. 1.179). (Compare Case 33.) An undated senatusconsultum provided the same for a woman whose guardian was insane or incapable of speech (ibid. 1.180). Would the praetor customarily intervene when a tutor refused to approve constitution of a dowry or the contraction of the odd marriage with manus? If the woman and the tutor were at complete loggerheads, she could also apply to have him replaced; see Case 227.