CASE 229: Where the Boys Are
D. 50.17.2 pr. (Ulpianus libro primo ad Sabinum)
Feminae ab omnibus officiis civilibus vel publicis remotae sunt et ideo nec iudices esse possunt nec magistratum gerere nec postulare nec pro alio intervenire nec procuratores existere.
D.
5.1.12.2 (Paulus libro septimo decimo ad edictum)Non autem omnes iudices dari possunt ab his qui iudicis dandi ius habent: quidam enim lege impediuntur ne iudices sint, quidam natura, quidam moribus. natura, ut surdus mutus: et perpetuo furiosus et impubes, quia iudicio carent. lege impeditur, qui senatus motus est. moribus feminae et servi, non quia non habent iudicium, sed quia receptum est, ut civilibus officiis non fungantur.
(Ulpian in the first book on Sabinus)
Women are excluded from all civic and public duties (officia civilia vel publica), and so they cannot be judges (iudices), hold magistracies, bring legal claims for others (postulare), represent others in court, or act as procuratores (for others in lawsuits).
(Paul in the seventeenth book on the Edict)
Moreover, not everyone can be appointed a judge (iudex) by those who have the right to appoint judges. Certain kinds of persons are prevented from acting as judges by statute, by nature, or by convention. By nature, there are the deaf and the mute; and also a permanent lunatic and a prepubescent child, since they lack judgment. By statute, a person who has been removed from the Senate is prevented (from serving as a judge). By convention, there are women and slaves, not because they do not possess judgment, but because it is traditional that they do not perform civic duties (civilia officia).
class=a3 style='margin-left:18.0pt;text-indent:-18.0pt'>1. Semicitizens? In the early Roman Empire, as in most Western societies until the success of the womens suffrage movement in the early twentieth century, women were citizens but were nonetheless legally barred from voting, holding magistracies, serving as jurors, and generally performing what were thought of as public duties. This view is repugnant today, but it is worth trying to see why it once prevailed. If it is conceded that women are free citizens who “possess judgment,” what justifications can possibly be offered for excluding them from public duties, beyond Paul’s half-hearted point that this is “traditional” (receptum)? The Latin word mores, here translated “convention,” has strong overtones of what is acceptable as decent and civilized behavior. What exactly were Roman men afraid of? Just sharing power?2. Judges. Being a judge (iudex) in a Roman criminal or civil trial does not mean being a legal professional; most judges were laypersons specifically appointed
to hear and decide particular trials. But this was a public duty that was often imposed on, especially, the elite. Ordinarily, if both parties to a civil lawsuit agreed on who they wanted to judge their case, the praetor would name that person. So, for instance, Pomponius, D. 5.1.80: If a iudex is named on the basis of the agreement of the two parties, the iudex is the person they intend even if they make a mistake on the persons exact name. However, the praetor enforces certain broad requirements for naming judges, one of which, as Paul notes, is that a iudex cannot be a child (impubes).
What if the parties nonetheless settled on a child? Ulpian (D. 42.1.57) says that so long as they did so knowing the boy's age, his decision is binding. Although dispute continues as to whether this decision gives classical law, it raises an interesting point: what would the outcome be if the parties agreed on a woman as iudex?3. Appearance in Court. The praetor, in an effort “to take account of his own position and to preserve his dignity and social position” (Ulpian, D. 3.1.1 pr.), issued rules on the sort of persons who could appear in his court and apply for actions or defenses. Certain persons (e.g., minors and the deaf) could not appear at all and therefore always had to be represented by others (ibid. 3). Others could appear for themselves but could not represent others; in addition to women, also included in this class (ibid. 5-6) were the blind, passive homosexuals, those who had been condemned on a capital charge or for bringing a malicious criminal charge against others, gladiators, and those who had fought wild beasts in the arena. Is there any common thread to these prohibitions? Representation can take several closely related forms: bringing or defending a claim on behalf of someone else (postulare; see ibid. 2); intervening as a representative of one party (intervenire); or acting as a procurator for the lawsuit, particularly when a litigant is physically unable to be present in court. A woman is forbidden to act in any of these functions; for possible reasons, see the following Case.
4. Criminal Law. Rome had no public prosecutor as such, so that the criminallaw system depended heavily on the initiative of private persons indicting wrongdoers before the authorities. Women were excluded from bringing criminal charges except in cases involving their parents, children, patrons, patron's children, or patrons grandchildren (Pomponius, D.
48.2.1; Papinian, D. 48.2.2 pr.; Ulpian, D. 49.5.1.1). What do you think the rationale for this exclusion might be? Is it similar to the one for postulatio? Certain exceptions were permitted in situations involving false wills and interference with the grain supply (Papinian, D. 48.2.2 pr.; Marcian, D. 48.2.13). What explains these exceptions?5. Witnesses. Women were not allowed to witness a will, but they were permitted to give evidence in criminal (and civil) cases, a rule that Ulpian (D. 28.1.20.6) infers from the prohibition in the adultery law on convicted adulteresses doing so; see also Paul, D. 22.5.18. Was it the statutes intent to allow women to bear witness, or was this just an inadvertent outcome? Does the jurist's reasoning suggest that they did not appear as witnesses very often?