B Women’s modesty and the need for protection
Imperial legal sources frequently invoke the notions of female “modesty” (pudor) and sexual chastity (pudicitia), and sometimes their “sense of shame” (verecundia).
Concern with preserving women's modesty and good reputation is behind laws which restrict women’s right of public action and laws which seek to protect women from dishonor. Like the idea of womanly weakness, concern with female modesty appears often in non-legal writers, and made its way into Roman law through popular ideas of gender roles [Evans Grubbs 1995, 321—30; Gardner 1993, 101—7]. Stress on feminine chastity and sense of modesty is particularly marked in late Roman law, reaching its culmination with the sixth-century emperor Justinian [Beaucamp 1990, 17-23].For instance, the Praetor's Edict75 stated that women could not bring a prosecution on behalf of another person [see Part V.A]. According to Ulpian :
D.3.1.1.5 (Ulpian): [see Part V.A for the beginning of the passage]... And indeed there is a reason for prohibiting them: so that women not get themselves mixed up in other people's lawsuits contrary to the modesty suitable for their sex, (and) so that women not discharge men's duties.
Only in certain circumstances could women initiate legal action on behalf of others, and even then only with respect for their modesty. For example, female relatives could bring an accusation of “untrustworthy guardian” [see Chapter 5, Part II.A.2]
D.26.10.1.7 (Ulpian): [see Chapter 5, Part II.A.2 for the beginning of the passage]...
And if there is any other woman, whose well-considered sense of duty (pietas) the praetor has understood to be that of a woman who does not go beyond the sense of shame for her sex (sexus verecundia), but, induced by her sense of duty, is not able to keep to herself the injury done to the minor, he will allow her to bring an accusation.Several laws of Constantine restrict and protect women from face-to-face involvement in public proceedings. They express a view found in some ancient literary sources but not before stated in such strong terms in Roman law, that respectable women should lead a secluded and modest life away from the public eye. This combination of restriction and protection of women’s public activities is not found again in Roman law until Justinian [Arjava 1996, 243-6; Beaucamp 1990, 136-8; Clark 1993, 56-62; Evans Grubbs 1995, 326-9].
Cod. Just. 2.12.21, 12 March, 315
New Roman">Emperor Constantine Augustus to the Council of the province of Africa:
A husband shall have the free capacity of interceding in his wife's affairs without a mandate (but) with the usual giving of security and other observances, so that women not rush irreverently into scorn of their matronly modesty (matronalis pudor) on the pretext of prosecuting a lawsuit, and so that they not be compelled to be present at the gatherings of men or at trials
76
Posted at Hadrumetum on the fourth day before the Ides of March in the fourth consulship of Constantine Augustus and the fourth consulship of Licinius.
Cod. Theod. 1.22.1, 11 January, 316
Emperor Constantine Augustus to Domitius Celsus, Vicar (of the province of Africa):
Let no judge determine with any command that an official should be sent to that home in which resides a materfamilias in order to drag her out into public, since it is certain that the financial obligations of a woman who keeps herself within her home out of consideration for her sex can be safeguarded for the public needs by the division and sale of her home or some other property.77 So if anyone hereafter believes that a materfamilias is to be dragged into public, (he shall be considered) among the most greatest criminals without any hope of reprieve, (and) he shall be struck by a capital penalty, or rather, by exquisite torments of destruction.
Given at Trier on the third day before the Ides of January in the consulship of Sabinus and Rufinus.78
By the fourth century, men and women under the legal age of twenty-five whose paterfamilias was dead were required to have either a tutor or a curator [see Part III.E. above].
In a law of 324, Constantine allowed minors who had displayed honestas morum (“honorable character”) to request the venia aetatis (“indulgence of age”), which would enable them to manage their own properties before they turned twenty-five. Young men could request the venia aetatis when they turned twenty, women when they turned eighteen (because, according to the law, they matured more quickly). To receive this privilege, they had to provide proof of age and have their character vouched for by men of rank and reputation, apparently in a public assembly. But the emperor made a concession to young women: they did not have to appear in public:Cod. Theod. 2.17.1.1, 9 April, 324
Emperor Constantine Augustus to Verinus, urban prefect:
[the beginning of the law is omitted here]... (1) We have decreed that women also, whose age (of maturity) precedes (that of) men by two years due to early puberty, after an interval of time has been observed also in this case, are able to earn the right of legal age after they have turned eighteen; but (only) those whom an honorable character, an intelligent mind, and a steady reputation commend. But on account of (their) modesty and sense of shame (propter pudorem ac verecundiam), we do not force them to be pointed out by witnesses in a public gathering, but we allow them, after receiving the venia aetatis, only to prove their age by means of documents or witnesses, having sent a representative (procurator), so that in all business matters they too shall have the same right as we have ordered that men have. [the rest of the law is omitted here]
Given at Thessalonika on the fifth day before the Ides of April, posted at Rome on the third day before the Kalends of June in the second [third] consulship of the Caesars Crispus and Constantine.79
A law of Constantine's son Constantius called for separation of the sexes in prison cells, evidently out of concern for sexual propriety:
Cod. Theod. 9.3.3, 5 April, 340
Emperor Constantius Augustus to Acindynus, praetorian prefect:
Since one closed chamber of a prison includes criminals mixed up together, we ordain by this law that, even if the nature of their penalty must be associated by this mixing together, however, it shall be ordered that separate guarded enclosures hold the different sexes.
Given on the Nones of April in the consulship of Acindynus and Proculus.80