CASE 230: Order in the Court

D. 3.1.1.5 (Ulpianus libro sexto ed edictum)

Secundo loco edictum proponitur in eos, qui pro aliis ne postulent: in quo edicto excepit praetor sexum et casum, item notavit personas in turpitudine notabiles.

(Ulpian in the sixth book on the Edict)

In the second category a provision of the (praetor’s) Edict is laid down against those who are forbidden to make claims (postulare) on behalf of others. In this part of the Edict the praetor framed specifications on the basis of sex and disabil­ity; further, he blacklisted those who merit this because of their depravity.

On the basis of sex: he bars women from making claims on behalf of others. And, indeed, the basis for this exclusion is to prevent women from entangling themselves in the lawsuits of others and performing male duties (virilia officia), contrary to the modesty that is becoming to their sex. The origin (of the ban) came in fact from Carfania, a very disreputable woman, who by shamelessly making claims and disturbing the praetor furnished the reason for this provision of the Edict..............

1.      Carfania’s Offense.

2.      Mind Your Own Business. What does Ulpian mean by “entangling them­selves in the lawsuits of others” as a motive for women's exclusion as repre­sentatives? Why, for example, should a mother not be allowed to represent her children?

3.      Male Stuff. The other justification expresses a concern with women “per­forming male duties.” Why is postulare so conceived? Is it that the private-law system operates in a public forum? Why did the Romans decide that women can make claims for themselves but not for others? What does the exclusion say about womens status as Roman citizens?