A sourcebook on women and the law in the Roman Empire: marriage, divorce, and widowhood

”In many parts of our law the condition of women is below that of men,” stated the third-century legal writer Papinian (D.1.5.9). Examination of the sources for Roman law under the Empire bears out the basic truth of his statement, while also revealing that women in the Roman classical period enjoyed greater property rights and freedom to divorce than did their American and European counterparts before the twentieth century.

This book presents, in English translation, sources from the Roman imperial period which illustrate the rights women held under Roman law, the restrictions to which they were subject, and legal regulations on marriage, divorce, and widowhood.

Today it is widely recognized that Roman legal and documentary sources are an important source of information about women in the Roman world, and can present a more well-rounded and accurate picture of women's lives than classical literature, which is often tendentious and bound by the conventions of genre.

Several different types of sources appear in this book. Most important, of course, are the Roman legal sources that lay out the norms and regulations of the law: in particular, for the classical period, the Digest and the Institutes of Gaius, and for the later period, the Theodosian Code. The nature and limi­tations of these sources are discussed in Part I of the Introduction. Also included are documents illustrating how these regulations worked in “real life” and how actual practice, particularly in the provinces, differed from the norms of Roman law. These “documentary” sources comprise documents written on papyrus, a paper-like material made from the stalk of the papyrus reed plant, and documents inscribed on stone or bronze. Unlike the legal sources, which have been transmitted to us (albeit in incomplete form) via the manuscript tradition, documentary papyri and inscriptions were found in the ground, either in proper excavations or in a more haphazard way. Of these, the papyri are almost all written in Greek, and almost all found in Egypt; a few are in Latin (generally for those few Roman citizens living in Egypt before 212), and a few were discovered elsewhere in the Middle East, for instance the Babatha archive in the “Cave of Letters” on the Dead Sea (see Chapter 5, Part II.B.2), or documents from the Roman outpost of Dura Europus on the Euphrates.

Also preserved via the manuscript tradition are selections from Latin and Greek literature found in this sourcebook. I include far fewer examples of literary than of the legal or documentary sources, for several reasons. In general, I have included “literary” sources only when they directly mention or illustrate Roman law and its workings in ordinary life. Works of classical literature are in general more likely to be accessible in English translation than are legal or documentary sources, and most of the many books that have already been published on women in antiquity focus on literary sources. I have, however, made an effort to include Christian sources relevant to Roman law because these are usually not included in books devoted to women in antiquity, and are often little known.

Something should be said about the limits I have imposed on this work, in terms of time, space, and topic. My chronological and spatial limits coin­cide with the traditional historical view of the “Roman Empire” as a political and geographical whole. The time limits are admittedly arbitrary: 31 B.C.E. is the year in which Octavian (the future emperor Augustus) defeated Mark Antony and Cleopatra at the Battle of Actium and thus became the first sole ruler of territory which at that time extended from the Hispanic peninsula in the west to the Euphrates in the east and from France in the north to the Sahara in the south. The Empire at its height in the second century included even more territory, having added Britain and lands west of the Rhine and south of the Danube (as well as modern Rumania, north of the Danube).

These time limits are not hard and fast: even before 31 B.C.E., Roman power extended over almost the same amount of territory, and the accession of Octavian/Augustus did not have immediate consequences for the legal systems of regions where few of the inhabitants were Roman citizens, and which continued by and large to follow their local law and custom until (and indeed, in many respects, even after) the grant of universal citizenship by the emperor Caracalla in 212. Moreover, already in the fourth century, the administration of the Empire was devolving into eastern and western halves, with two imperial capitals (Rome and Constantinople), each with their own Senate, and usually at least two reigning emperors with their own legal staffs. However, the publication of the Theodosian Code in 438 (see Part I.B of the Introduction) did bring legal unity to east and west, albeit very briefly. In 476, the promulgation of post-Theodosian “new” Roman laws (novellae) in the west ended, and although the new Germanic nations did use Roman law for their Roman inhabitants, and were influenced by Roman legislation in their own law-making, I believe a case can be made for ending a treat­ment of “Roman imperial law” in 476. Nevertheless, it must be recognized that Roman law, and Roman administration, did continue, mutatis mutandis, in the “Byzantine” (our word, not theirs) eastern Empire for centuries. Indeed, our knowledge of “classical” Roman law is almost entirely depen­dent on the project of the sixth-century Roman/Byzantine emperor Justinian, which resulted in the publication of the Digest, the Justinianic Code, and the Institutes of Justinian (see Part I.A.

My self-imposed chronological limits do mean that two voluminous and extremely valuable sources of Roman law are omitted: at the one end, the many speeches of the late Republican orator and statesman Cicero, at the other end, the original legislation of Justinian promulgated in his “novellae.” Considerations of space, and, in particular, the limitations of my own exper­tise, have necessitated this.

I hope that this sourcebook will serve as a complement and companion to the works of Jane Gardner and Antti Arjava, who have provided clear and thorough accounts of the position of women in Roman law of the classical and late antique period respectively. Their books are narratives which include excerpts from ancient sources to illustrate specific points. This book, on the other hand, centers on the ancient sources themselves, providing extended translations of examples from the sources for the topics they discuss. It is certainly not the first “sourcebook” on women and family life in the Roman Empire; the past twenty years have seen many books that collect and translate ancient sources focusing on women, beginning with Mary Lefkowitz and Maureen Fant's Women’s Life in Greece and Rome (first published in 1982, with a second edition ten years later), and including also Jane Gardner and Thomas Wiedemann's sourcebook on The Roman Household in 1991. More recently, there is the excellent collection of texts (mostly from papyri) on Women and Society in Greek and Roman Egypt, edited by Jane Rowlandson and published in 1998. All of these books include selections from legal sources, and there is inevitably some overlap between them and this sourcebook. The difference is that my book focuses on the legal evidence, and restricts its coverage to the Roman imperial period. I have also tried to include texts which have been published within the past fifteen years (such as documents from the Babatha archive or the lex Irnitana from Spain) or which are from regions of the Empire outside Italy or Egypt, and which therefore have not received as much attention in previous source­books.

This book is intended primarily for students and teachers (undergraduate and graduate) in the fields of women's studies, classics, ancient and medieval history, and history of the family. There will be much less here for specialists in Roman law, who will already be familiar with most of the material covered, and will find the commentary rather over-simplified. My focus in this book is on the sources, and I do not attempt to provide thorough anal­ysis or detailed legal and historical context; however, the footnotes contain details which may be of interest to some. I have also (with a few important exceptions) restricted bibliographic items to those written in English, particularly during the last twenty years, although there is a voluminous bibliography of works on Roman law and on women in the Empire published in European languages. For more detailed coverage, readers should go to the fine works of Gardner and Arjava, as well as the many other scholars who are cited in the notes and bibliography.