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Roman Family Law
Roman
Family Law was based on the principle that the father of the family (pater
familias) had complete authority both over the children and his wife. This
was defined as paternal power : (patria potestas).
The
wife held the following position:
- The wife is the property of her husband and completely subjected to
his disposition.
- He could punish her in anyway, including killing her, or selling her
as a slave (the last punishment was forbidden after 100 BC).
- As far as family property is concerned the wife herself does not own
anything. Everything she or her children inherit belongs to her husband,
including also the dowry which she brought with her to her marriage.
In later time this absolute power of the husband was gradually
diminished leading to what was known as the “free marriage”, husband
and wife could agree upon.
However, even in this new situation, the husband had the right to make
the final decisions in all questions concerning the family: for instance the
place of residence which the wife had to share with him, the education of the
children, the exclusive rights on her wifely duties, while the husband himself
could make love to other women with impunity.
The rights of women in general Civil Roman Law
Although the woman was considered a Roman citizen, she obtained her
position only through her husband. Neither slaves nor women could carry their
own name. Only men carried this distinct sign of their being a Roman citizen.
The general law was: “In many sections of our law the condition
of women is weaker than that of men”.
Moreover, the woman was excluded from all public functions and
rights: “Women are excluded from all civil and public functions and
therefore can neither be judges nor carry any civil authority, they cannot
bring a court case, nor intercede for someone else nor act as
mediators”.
- The woman could not have charge of another person. “Tutela
virile officium est” . She could not have patronage of her children and
cousins (except in later Roman law).
- Women could function as witnesses, whether at the drawing up of a
last will, or in any other form of law. “The woman is incapable of
being a witness in any form of jurisprudence where witnesses are
required”. Women were reckoned with minors, slaves, the dumb and
criminals to be incapable of being witnesses.
- Women could not start a court case without being represented by a
man. Women cannot represent themselves in law “because of the infirmity
of their sex and because of their ignorance about matters pertaining to public
life”.
In spite of a slight relaxation in laws which offered more protection
to women in the Roman Empire of the 3rd and 4th centuries, the overall inferior
status of women remained the same.
H.HEUMANN and E.SECKEL, Handlexikon zu den Quellen des römischen
Rechts, Graz 1958, pp. 246 and 265. L.WENGER, Institutes of the Roman
Law of Civil Procedure, Littleton 1940; F.SCHULZ, Classical Roman
Law, London 1951; M.KASER, Roman Private Law, Oxford 1965.
Excellent overviews of Roman Law and detailed excerpts of it can be
found on the web site dealing with
Women's
Life in Greece and Rome.
Since Church leaders took Roman Law as the norm for what is right and
just, the same negative rules regarding women found their way into Christian
thought, practice and law.
It is obvious that Christians who accepted the socially and
culturally inferior status of women, could not envisage her in the leadership
role demanded of bishops and priests.
John Wijngaards
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