Page - 32 - in Austrian Law Journal, Volume 1/2017

ALJ 1/2017 Leo Peppe 32 male condition revolved around the conjugal house and its care. There was also an awareness, to borrow the words of the jurist Papinianus of about 200 CE, that “There are many points in our law in which the condition of females is inferior to that of males.”36 Correspondingly, even within the Roman elite, the individual social value, the dignitas, of men was always greater than that of women.37 Why this difference? According to the Roman jurists of the II and III century CE, a recurring expla- nation is the supposed feebleness of the female mind, the so-called sexus inbecillitas: this is a common statement in Roman classical culture, one that finds full expression already in Greek culture.38 In my opinion literature has and still places too much importance on this “feebleness”, while not enough questions have been asked about why this justification appears in Roman law and culture only from I century BCE in Cicero:39 indeed, it sounds like an artificial label. Even the jurist Gaius, reflecting his world of the II century CE, states that this is a specious explanation devoid of truth.40 In fact, this label served to cloak the increasing difficulty of making exclusive recourse to the an- cient and original principle, according to which women were excluded from whatever tasks that were considered masculine at the time.41 This also indicates the concern for protecting women’s modesty, in particular by ensuring that their presence in society remained discreet. Especially in non-legal sources, the female occupa- tion of a public space is condemned. When this does occur, this woman’s opinions place her at 36 DIG.1.5.9 (Pap. l. 31 quaest.): “In multis iuris nostri articulis deterior est condicio feminarum quam masculorum”; about mores a perfect example is D. 5.1.12.2 (Paul. l. 17 ad ed.): “Non autem omnes iudices dari possunt ab his qui iudicis dandi ius habent: quidam enim lege impediuntur ne iudices sint, quidam natura, quidam moribus. Natura, ut surdus mutus: et perpetuo furiosus et impubes, quia iudicio carent. Lege impeditur, qui senatu motus est. Moribus feminae et servi, non quia non habent iudicium, sed quia receptum est, ut civilibus officiis non fungantur.” “Not every- body may be appointed judge by those with the right to appoint judges. For some are prevented by statute from being judges, some by nature, and some by custom. For example, the deaf and dumb, the permanently insane, and the im- pubes [prepubescent child] through lack of judgement are prevented by nature. A person expelled from the senate is prevented by statute. Women and slaves are prevented by custom, not because they lack judgement but because it is accepted [it is traditional] that they do not perform civic duties.” 37 DIG. 1.9.1 PR. (Ulp. l. 62 ad ed.): “Consulari feminae utique consularem virum praeferendum nemo ambigit. Sed vir praefectorius an consulari feminae praeferatur, videndum. Putem praeferri, quia maior dignitas est in sexu virili.” “That a man of consular rank always takes precedence over a lady of consular rank is a point no one doubts. However, whether a man of prefectorial rank takes precedence over a lady of consular rank remains to be seen. I should think he does, because greater dignity inheres in the male sex.” 38 Giunio Rizzelli, Représentations féminines, lieux communs et droit dans la Rome antique, in DONNE, CIVILTÀ E SISTEMI GIURIDICI. RACCOLTA DI TESTI DAL MASTER INTERNAZIONALE CONGIUNTO FEMMES, CIVILISATION ET SYSTÈMES JURIDIQUES 59, esp. 61 et seq. (D. Curtotti, C. Novi & G. Rizzelli eds., 2006). 39 CIC. Mur. 12.27: infirmitas consilii, “weak judgement”; for sexus inbecillitas see DIG. 16.1.2.2 (Paul. l. 30 ad ed.): “Verba itaque senatus consulti excutiamus prius providentia amplissimi ordinis laudata, quia opem tulit mulieribus propter sexus inbecillitatem multis huiuscemodi casibus suppositis atque obiectis.” “And so let us examine the terms of the se- natus consultum [s.c. Velleianum, about 54 CE], having first praised the foresight of the most distinguished order [the senate], because it brought help to women, seduced and deceived in many cases of this kind, on account of the weak- ness of their sex.” 40 GAI 1.190. 41 About tutelage see DIG. 26.1.16 PR. (Gai l. 12 ad ed. prov.): “Tutela plerumque virile officium est.” “Tutelage is, for the most part, a masculine office.” (The interpolation suggested by some for plerumque serves only to remove a source of embarrassment for those who do not wish to admit exceptions.) DIG. 26.1.18 (Neratius l. 3 reg.): “Femi- nae tutores dari non possunt, quia id munus masculorum est, nisi a principe filiorum tutelam specialiter postulent.” “Women cannot be appointed as tutors, because this is a duty for males, unless they petition the emperor especially for the tutelage of their children.” (Plerumque and nisi relativize the scope of the general principle.)