Seite - 24 - in Austrian Law Journal, Band 1/2017

ALJ 1/2017 Leo Peppe 24 underlying awareness of that androcentrism. Nowadays, research using current refined instru- ments of the social sciences mostly seeks out or re-examines the materials surviving from an- tiquity in light of this awareness. Indeed, in 2013, the great Byzantinist Judith Herrin began the Introduction to a collection of her essays with the following words: “At first there was women’s history, then the history of gender, and now a vastly more sophisticated theory and methodology of studying historical men and women.”3 In the apparent ivory tower of studies of women in antiquity, this process of reorientation is plausible, but its contemporary relevance is also apparent, placing gender at the heart of debate. If we think of the heated arguments of recent years, or more accurately, of recent months, concerning the so-called “gender theory”, it is impossible to avoid linking this argument to the interpretations and uses of the notion of natura, nature, in the Roman sources on marriage. Exemplary in this context, are the use of this notion by Wolfgang Waldstein4 and the potential criticisms that can be advanced against it.5 The viewpoints adopted in these studies initially included law, for example in Pomeroy’s book, although it did not occupy a central position. However, in Jane Gardner’s book of 1986 law played a larger role.6 Overall, these studies reflect influences of the political and cultural climate of the time, focusing in particular on the themes of exclusion and discrimination against women. In the early 1980s, I studied the topic of the populus Romanus, Roman people. I did it from an essentially legal perspective and, despite all my reading, I found it extremely difficult to give women their rightful place in it. The free Roman woman was a civis, a citizen. Yet, in what way did she belong to the populus? The issue here is not exclusion, but rather inclusion and the forms of inclusion within a sphere of civic relationships that may go right to the heart of political power and government. Joan Scott later raised this question at the end of her seminal article of 1986:7 “What is the relationship between the laws about women and the power of the state? Why (and since when) have women been invisible as historical subjects, when we know they participated in the great and small events of human history?” For me as a jurist, the main key was the law. There were hardly any earlier studies in the field and their approach was highly traditional. Thirty years have passed since then, and the literature on these issues is now vast. We have seen a new approach to the sources, with the massive use of finds belonging to material culture, especially inscriptions, rendered much easier to process with the IT tools now available. But it is not just a question of tools: the scholars’ attitude to these materials has also changed, including that of Roman law experts; we no longer exclusively study the legal sources. I will now attempt to reflect on a series of issues that are in my opinion illustra- tive from the point of view of inclusion. 3 JUDITH HERRIN, UNRIVALLED INFLUENCE: WOMEN AND EMPIRE IN BYZANTIUM, XIII (2013). 4 WOLFGANG WALDSTEIN, INS HERZ GESCHRIEBEN: DAS NATURRECHT ALS FUNDAMENT EINER MENSCHLICHEN GESELLSCHAFT (2010). 5 Jakub Urbanik, On the Uselessness of It All: the Roman Law of Marriage and Modern Times, Essays L. Winkel, Funda- mina 946 (2014). 6 Jane F. Gardner, Women in Roman Law and Society, in The Family in Acient Rome (Beryl Rawson ed., 1987); (In those years the early papers of Suzanne Dixon were published.) SUZANNE DIXON, FAMILY FINANCES: TULLIA AND TEREN- TIA, ANTICHTHON 78 (1984); ead., Infirmitas Sexus: Womanly Weakness in Roman Law, 52 TIJDSCHRIFT VOOR RECHTSGES- CHIEDENIS 343 (1984); ead., Polybius on Roman Women and Property, 106 AMERICAN JOURNAL OF PHILOLOGY 147 (1985); ead., The Marriage Alliance in The Roman Elite, 10, JOURNAL OF FAMILY HISTORY 353 (1985). 7 Joan W. Scott, Gender: A Useful Category of Historical Analysis, 91 THE AMERICAN HISTORICAL REVIEW 1053, 1074 (1986).