The Second Sex (20 page)

Little by little the legal situation of Roman women adapts to their practical situation. During the patrician oligarchy, each paterfamilias is an independent ruler within the Republic; but when state power becomes established, it opposes the concentration of wealth and the arrogance of powerful families. Family courts bow to public justice. And woman acquires ever greater rights. Four powers originally limited her freedom: the father and the husband controlled her person, her guardian and
manus
her property. The state takes authority over the opposition of father and husband to restrict their rights: the state court will now rule over adultery cases, divorce, and so on. In the same way, guardians and
manus
destroy each other. In the interest of the guardian, the
manus
had already been separated from marriage; later, the
manus
becomes an expedient that women use to escape their guardians, either by contracting fictitious marriages or by securing obliging guardians from their father or from the state. Under imperial legislation, guardianship will be entirely abolished. Woman simultaneously gains a positive guarantee of her independence: her father is obliged to provide her with a dowry; and it will not go back to the agnates after the marriage’s dissolution, nor does it ever belong to her husband; a woman can at any moment demand restitution by a sudden divorce, which puts man at her mercy. “In accepting the dowry, he sold his power,” said Plautus. From the end of the Republic on, the mother’s right to her children’s respect was recognized as equal to the father’s; she is granted custody of her children in case of guardianship or of the husband’s bad conduct. When she had three children and the deceased had no heirs, a Senate decree, under Hadrian, entitled her to an
ab intestat
succession right for each of them. And under Marcus Aurelius the Roman family’s evolution was completed: from 178 on, the mother’s children become her heirs, over her male relatives; from then on, the family is based on
coniunctio sanguinis
, and the mother is equal to the father; the daughter inherits like her brothers.

Nevertheless, the history of Roman law shows a tendency that contradicts the one just described: rendering the woman independent of the family, the central power takes her back under its guardianship and subjects her to various legal restraints.

In fact, she would assume an unsettling importance if she could be both rich and independent; so what is conceded with one hand is taken
away from her with the other. The Oppian Law that banned luxury was voted when Hannibal threatened Rome; when the danger passed, women demanded its abrogation; in a famous speech, Cato asked that it be upheld: but a demonstration by matrons assembled in the public square carried the repeal against him. More severe laws were proposed as mores loosened, but without great success: they did little more than give rise to fraud. Only the Velleian Senate decree triumphed, forbidding woman to “intercede” for others,
³
depriving her of nearly every legal capacity. It is when woman is probably the most emancipated that the inferiority of her sex is proclaimed, a remarkable example of the male justification process already discussed: when her rights as girl, wife, or sister are no longer limited, she is refused equality with men because of her sex; the pretext for persecuting her becomes “imbecility and fragility of the sex.”

The fact is that matrons did not put their newfound freedom to the best use; but it is also true that they were forbidden to take the best advantage of it. These two contradictory strains—an individualistic strain that tears woman from the family and a state-controlled strain that abuses her as an individual—result in an unbalanced situation for her. She can inherit, she has equal rights with the father concerning the children, she can will her property thanks to the institution of the dowry, she escapes conjugal restraints, she can divorce and remarry as she wishes: but she is emancipated only in a negative way because she is offered no employment for her vital forces. Economic independence remains abstract since it yields no political capacity; therefore, lacking the power to
act
, Roman women
demonstrate:
they cause a ruckus in towns, they besiege the courts, they brew, they foment plots, they lay down prescriptions, they inflame civil wars, they march along the Tiber carrying the statue of the Mother of the Gods, thus introducing Oriental divinities to Rome; in the year 114 the scandal of the vestal virgins breaks out, and their college is then disbanded. As public life and virtue are out of reach, and when the dissolution of the family renders the former private virtues useless and outdated, there is no longer any moral code for women. They have two choices: either to respect the same values as their grandmothers or to no longer recognize any. The end of the first century and beginning of the second see numerous women living as companions and partners of their spouses, as in the time of the Republic: Plotina shares the glory and responsibilities of Trajan; Sabina becomes so famous for her good deeds that statues deify her while she is
still alive; under Tiberius, Sextia refuses to live on after Aemilius Scaurus, and Pascea to live on after Pomponius Labeus; Paulina opens her veins at the same time as Seneca; Pliny the Younger makes Arria’s “Paete, non dolet” famous; Martial admires the irreproachable wives and devoted mothers Claudia Rufina, Virginia, and Sulpicia. But numerous women refuse motherhood, and many women divorce; laws continue to ban adultery: some matrons even go so far as to register as prostitutes to avoid being constrained in their debaucheries.
⁴
Until then, Latin literature had always respected women: then satirists went wild against them. They attacked, in fact, not women in general but mainly contemporary women. Juvenal reproaches their hedonism and gluttony; he accuses them of aspiring to men’s professions: they take an interest in politics, immerse themselves in court cases, debate with grammarians and rhetoricians, develop passions for hunting, chariot racing, fencing, and wrestling. But in fact they rival men mainly because of their own taste for amusement and vice; they lack sufficient education for higher aims; and besides, no objective is even proposed to them; action remains forbidden to them. The Roman woman of the ancient Republic has a place on earth, but she is still chained to it by lack of abstract rights and economic independence; the Roman woman of the decline is typical of false emancipation, possessing, in a world where men are still the only masters, nothing but empty freedom: she is free “for nothing.”

The evolution of the feminine condition was not a continuous process. With the great invasions, all of civilization is put into question. Roman law itself is under the influence of a new ideology, Christianity; and in the centuries that follow, barbarians impose their laws. The economic, social, and political situation is overturned: and women’s situation suffers the consequences.

Christian ideology played no little role in women’s oppression. Without a doubt, there is a breath of charity in the Gospels that spread to women as well as to lepers; poor people, slaves, and women are the ones who adhere most passionately to the new law. In the very early days of Christianity, women who submitted to the yoke of the Church were relatively respected; they testified along with men as martyrs; but they could nonetheless worship only in secondary roles; deaconesses were authorized only to do lay work: caring for the sick or helping the poor. And although marriage is considered an institution demanding mutual fidelity, it seems clear that the wife must be totally subordinate to the husband: through Saint Paul the fiercely antifeminist Jewish tradition is affirmed. Saint Paul commands self-effacement and reserve from women; he bases the principle of subordination of women to man on the Old and New Testaments. “The man is not of the woman; but the woman of the man”; and “Neither was man created for the woman; but the woman for the man.” And elsewhere: “For the husband is the head of the wife, even as Christ is the head of the church.” In a religion where the flesh is cursed, the woman becomes the devil’s most fearsome temptation. Tertullian writes: “Woman! You are the devil’s gateway. You have convinced the one the devil did not dare to confront directly. It is your fault that God’s Son had to die. You should always dress in mourning and rags.” Saint Ambrose: “Adam was led to sin by Eve and not Eve by Adam. It is right and just that he whom she led into sin, she shall receive as master.” And Saint John Chrysostom: “Of all the
wild animals, none can be found as harmful as woman.” When canon law is written in the fourth century, marriage is treated as a concession to human failings, incompatible with Christian perfection. “Take up the hatchet and cut the roots of the sterile tree of marriage,” writes Saint Jerome. In the time of Gregory VI, when celibacy was imposed on priests, woman’s dangerous character was more harshly asserted: all the Fathers of the Church proclaim her wretchedness. Saint Thomas will remain true to this tradition, declaring that woman is only an “occasional” and incomplete being, a sort of failed man. “Man is the head of woman just as Christ is the head of man,” he writes. “It is a constant that woman is destined to live under the authority of man and has no authority of her own.” Thus, the only marriage regime canon law recognizes is by dowry, rendering woman helpless and powerless. Not only is she prohibited from male functions, but she is also barred from making court depositions, and her testimony holds no weight. The emperors are more or less under the influence of the Church Fathers; Justinian’s legislation honors woman as spouse and mother but subjugates her to those functions; her helplessness is due not to her sex but to her situation within the family. Divorce is prohibited, and marriage has to be a public event; the mother has the same authority over her children as the father, and she has equal rights to their inheritance; if her husband dies, she becomes their legal tutor. The Velleian Senate decree is modified: from that time on she can intercede for the benefit of a third party; but she cannot contract for her husband; her dowry becomes inalienable; it is her children’s patrimony, and she is forbidden to dispose of it.

In barbarian-occupied territories, these laws are juxtaposed with Germanic traditions. The German customs were unique. They had chiefs only in wartime; in peacetime the family was an autonomous society; it seemed to be midway between matrilineal filiation clans and patriarchal gens; the mother’s brother had the same power as the father and the same authority over their niece and daughter as her husband. In a society where all capacity was rooted in brute force, woman was entirely powerless; but the rights that were guaranteed to her by the twofold domestic powers on which she depended were recognized; subjugated, she was nonetheless respected; her husband purchased her, but the price of this purchase constituted a dowry that belonged to her; and besides, her father dowered her; she received her portion of the paternal inheritance and, in the case of parents being murdered, a portion of the fine paid by the murderer. The family was monogamous, adultery being severely punished and marriage respected. The woman still lived under wardship, but she was a close partner of her husband. “In peace and in war, she shares his lot; she lives with him, she dies
with him,” says Tacitus. She went to war with him, brought food to the soldiers, and encouraged them by her presence. As a widow, part of her deceased husband’s power was transmitted to her. Since her incapacity was rooted in her physical frailty, it was not considered an expression of moral inferiority. Some women were priestesses and prophets, so it could be assumed that their education was superior to men’s. Among the objects that legally reverted to women in questions of inheritance were, later, jewelry and books.

This is the tradition that continues into the Middle Ages. The woman is absolutely dependent on her father and husband: during Clovis’s time, the
mundium
weighs on her throughout her life;
^*
but the Franks rejected Germanic chastity: under the Merovingians and Carolingians polygamy reigns; the woman is married without her consent and can be repudiated by her husband, who holds the right of life or death over her according to his whim. She is treated like a servant. Laws protect her but only inasmuch as she is the man’s property and the mother of his children. Calling her a prostitute without having proof is considered an insult liable to a fine fifteen times more than any insult to a man; kidnapping a married woman is equivalent to a free man’s murder; taking a married woman’s hand or arm is liable to a fine of fifteen to thirty-five sous; abortion is forbidden under threat of a hundred-sou fine; murder of a pregnant woman costs four times that of a free man; a woman who has proved herself fertile is worth three times a free man; but she loses all worth when she can no longer be a mother; if she marries a slave, she becomes an outlaw, and her parents have the right to kill her. She has no rights as an individual. But while the state is becoming powerful, the shift that had occurred in Rome occurs here as well: the wardship of the disabled, children, and women no longer belongs to family law but becomes a public office; starting from Charlemagne, the
mundium
that weighs down the woman belongs to the king; he only intervenes at first in cases in which the woman is deprived of her natural guardians; then, little by little, he confiscates the family powers; but this change does not bring about the Frank woman’s emancipation. The
mundium
becomes the guardian’s responsibility; his duty is to protect his ward: this protection brings about the same slavery for woman as in the past.