Page - 28 - in Austrian Law Journal, Volume 1/2017

ALJ 1/2017 Leo Peppe 28 confer upon her the same privileges which they themselves enjoy”.20 Someone, who cannot be a magistrate, cannot participate fully in those bodies that elect the magistrate, the popular assem- blies. In this regard, women were completely excluded from the sphere of politics understood as the active management of society. As Gellius writes,21 the Roman woman does not enjoy communio comitiorum, the right to belong to popular assemblies. In the context of public law, we could however consider two very ancient rights enjoyed by the civis Romanus, dating back almost to the beginning of the Republic: the provocatio ad populum, the right to request a popular judgment in cases, where the persons concerned incurred the maximum penalty, and appellatio, the appeal to the tribunes of the plebs to intervene in order to block the initiative of a magistrate that was politically unacceptable. These rights are strongly political in nature. Provocatio does not appear to have been forbidden to women, but there is no direct evidence that it was ever used. For appellatio, the sources speak about at least one case in which a woman invoked this right. This case illustrates particularly well how complex the statute of the civis was, even more so because the woman in question, a certain Manilia, was a prostitute. However, the evidence is probative, since it comes from a technical legal work by a great jurist, Ateius Capito.22 We find ourselves in 151 BCE. After dinner, a high-ranking magistrate, the Curule Aedile Hostilius Mancinus, goes to Manilia’s house and demands to be let in. She refuses and, when he tries to enter by force, she throws a stone at his head causing a serious wound. The magistrate seeks to put her on trial, but Manilia asks the tribunes of the plebs for help. They in- tervene and prohibit the continuation of the trial: Manilia is, hence, saved. The tribunes inter- vene, on the one hand, to sanction the magistrate’s indecorous behaviour and, on the other, to punish his arrogance, albeit towards a woman of lowly social status, such as a prostitute. Obviously, in the very different context of the Principate, there were effectively no limits on the women’s ability to turn to the emperor and his chancery. 4. A great difference between Roman antiquity and today Seemingly, the above cases show that the condition of Roman women was better than is usually thought. They could even suggest what appears to be a distinction between our own society and that of ancient Rome to the advantage of the Roman women. Paradoxically, we could say that in our time solemn legal formulations often go in the direction of the absolute parity of the sexes, but that social and even legal practice are, as a matter of fact, fundamentally discriminatory, for instance, concerning salaries. By contrast, in the Roman world the rules are, in many cases, strongly discriminatory, but legal and social practice often go in the direction of a vigorously emancipated female figure. As Nikolaus Benke has aptly put it in law, “the Roman culture of gender appears quite ambivalent”.23 20 DIG. 1.3.31 (Ulp. l. 13 ad l. Iuliam et Papiam): “Princeps legibus solutus est: Augusta autem licet legibus soluta non est, principes tamen eadem illi privilegia tribuunt, quae ipsi habent.” 21 GELL. Noct. Att. 5.19.10. 22 GELL. Noct. Att. 4.14.; about the episode of Manilia see L. PEPPE, POSIZIONE GIURIDICA E RUOLO SOCIALE DELLA DONNA ROMANA IN ETÀ REPUBBLICANA 114 (1984). 23 Nikolaus Benke, Gender and Roman Law of Obligations, in OBLIGATIONS IN ROMAN LAW. PAST, PRESENT, AND FUTURE. PAPERS AND MONOGRAPHS OF THE AMERICAN ACADEMY IN ROME 33, 215, 219 (Thomas A. J. McGinn ed., 2012); id. at 233: Roman law was “liberal, individual, and largely gender neutral”; see also Yan Thomas, La divisione dei sessi nel diritto romano, in 1 STORIA DELLE DONNE IN OCCIDENTE. L’ANTICHITÀ 103 (1990).