CASE 231: Male Jobs

D. 26.1.16 pr. (Gaius libro duodecimo ad edictum provinciale)

Tutela plerumque virile officium est.

D.

Feminae tutores dari non possunt, quia id munus masculorum est, nisi a principe filiorum tutelam specialiter postulent.

D. 2.13.12 (Callistratus libro primo Edicti Monitorii)

Feminae remotae videntur ab officio argentarii, cum ea opera virilis sit.

(Gaius in the twelfth book on the Provincial Edict)

Tutelage is generally a male duty (virile officium).

(Neratius in the third book of his Rules of Law)

Women cannot be appointed tutores since this is a responsibility of males (munus masculorum), unless they specifically request the tutelage of their children from the emperor.

(Callistratus in the first book On the Monitory Edict)

Women are held to be excluded from the position of banker, since this is a male job (opera virilis).

1.      Public Duty. As the wording of Case 214 suggests, tutelage was thought of as a kind of civic responsibility. How is the ineligibility of women to act as tutores of minor-age children related to their exclusion from public duties? Is it that tutelage is conceived of as also a public trust? Or is it that women themselves were usually required to have tutores? In a late classical rescript, Alexander Severus (C.

2.      Private Duty. A number of texts suggest that the tutelage of minor-age chil­dren was regarded as a private family matter, best entrusted to their mother. Papinian (D. 3.5.30.6) denies that a mother can act as a guardian to her son as requested in her husbands will insofar as she is unable to engage in law­suits at her own risk: she cannot sue in her son's name, alienate his property, or grant formal release to his debtors. Does this amount to saying that a woman cannot be a tutor because she cannot be a tutor? The same jurist im­plies that if a provincial governor wrongly upheld a will making such an arrangement, his successor should quash it (D. 26.2.26 pr.). How could a provincial governor make such an error? Finally, Ulpian, citing Papinian, seems to record an attempt by a father to dodge this rule in his will by en­trusting the management of his children’s estate to their mother and releasing the tutores from responsibility for it (D. 26.7.5.8). Why not allow this?

3.      Exceptions. In the principal Case, Gaius implies (see “generally”) and Ner- atius states outright that some women could obtain leave from the emperor to act as tutores for their own children. Why was this exception allowed? Ulpian (D. 5.2.29.3; cited in the Discussion to Case 153) allows some women to adopt with the permission of the emperor. Is the rationale in both instances similar?

4.      Quasi Exceptions. Though not permitted to act as tutores, women could and evidently did manage the estates of minor-age descendants.

5.      Legal Protection. Pomponius (D. 27.5.4) says that someone who administers property in place of a tutor should display the same good faith and care that a tutor does. Was a mother, to the Roman mind, capable of showing these qual­ities? Persons who, although not guardians, managed the affairs of others were still liable under contractual or quasi-contractual actions. Does this pro­tection of the ward’s interests seem adequate to you?

6.      Why Banking? Women were not legally barred from entering most profes­sions, but banking was an exception. Although ancient banks, minuscule by modern standards, were owned and operated by private individuals, they were loosely supervised and regulated by the government. Further, the records of bankers had privileged status as evidence of financial transactions, and bankers could therefore often be obliged to appear in court to provide this evidence (Ulpian, D. 2.13.4 pr.). Is all this enough to explain the exclu­sion of women? Is it likely that women would also be excluded from other professions with a public nature, such as surveying or the keeping of weights and measures? Could a woman be a jurist if she avoided court appearances?

style='font-size:8.5pt;line-height:122%'>