Patriarchy and freedom

In the ancient world, Egypt was distinguished both for the high status it gave women and for the proto-socialist enslavement of the populace to the government.  In ancient Greece, there was a city where women were legally treated as permanent minors and socially lived in near seculsion.  That city was Athens.  There was another city where women were remarkably public and independent.  That city was Sparta.  In Republican Rome, the father held nearly unlimited authority over his wife and children.  As the Empire sank into bureaucratic despotism, wives gained more and more rights against their husbands.  In modern times, the agents of atheist totalitarian tyranny–first the Jacobins, then the communists, have always championed the feminist cause, leaving the free nations of the West as the default defenders of patriarchy.  The main theoreticians of feminism, Betty Friedan and Simone de Beauvoir, were Stalinists.  (Readers interested in corroborating my historical sketch can consult the historical overview in The Second Sex.)

Myself, I tend to think that political freedom is overrated, so the correlation here is less interesting to me than it may be to some of you.  Considering that the tyrant’s best strategy is to attack all rival authorities, that the cleverest way to do this is to pose as a champion of those subject to other authorities, and that the paterfamilias is the most ancient authority outside the state, it’s hardly surprising that sexual equality and despotism should so easily go together.

4 Responses

  1. I should just like to qualify your remark that “In Republican Rome, the father held nearly unlimited authority over his wife and children”

    Roman “free marriage” was the product of Patriarchy, not a challenge to it. It represented the priority of the father’s right over the husband’s.

    The Paterfamilias had, not “nearly unlimited,” but absolute authority over his children, male and female and over his sons’ children, male and female. The Jurists called it the “ius vitae necisque” (the power of life and death) and so it was. Of course, whatever they acquired was his, because they were his.

    Now this power was, not only absolute, but life-long. There were procedures by which this power could be transferred from the Paterfamilias (father or grandfather) to the husband, when it was known as “manus mariti,” but this was never universal; most fathers preferred to retain their authority over their daughters and for their daughters’ inheritances to come back to their birth-family, rather than pass into the control of her husband’s father of grandfather. Hence, “free marriage.”

    In free marriage, the son or daughter remained in the power of his or her Paterfamilias; he could dissolve the marriage at will, after all, he could sell them as indentures servants, or sell them “over the Tiber,” as slaves, if he chose, (or slit their throats, for that matter). Of course, if the wife was sui juris, either by the death of her Paterfamilias, or by emancipation, her husband had no more power over her person or property than he had, when her Paterfamilias was alive. Any transfer of property between husband and wife was void against their creditors or heirs and, in any event, a wife with no Paterfamilias was under the “tutela” or guardianship of her “agnates” (those who could trace descent from a male ancestor, through males – usually her brothers and sisters, or her brothers’ children, but it might be her father’s brothers and sisters – (that is why Latin had quite different words for paternal and maternal uncles and aunts). Their authority was required for almost all important business transactions.

    In fact, the only legal consequence of “free marriage” was the right of the husband to beget “liberi” (children in his power) out of the wife – “Pater est is quem nuptiae demonstrant.” Hence the husband’s right to kill the adulterous wife and her paramour.

    Likewise, as the Romans had a truly Patriarchal system, a woman’s property never passed on death to her husband or their children, (until the divine Augustus allowed this for a woman who had born four children) but to her agnates.. The maxim of the jurists was that the child is of the blood of the father and not of the blood of the mother.

    The great change, under the Empire was the weakening of the authority, not of the husband (which was non-existant) but of the agnates, under the divine Claudius, who allowed women to choose their own guardians and to change them, as often as they pleased.

    All this can be found simply explained in the Institutes of Gaius, who wrote under Hadrian and in various tests in Justinian’s Digest (although these are heavily interpolated by the compilers, so one needs to consult a modern critical edition). Gaius is a very good source: he was a contemporary, his text-book was written for first-year law students and it was popular, because he is a very lucid expositor, much easier to follow than most modern writers on the subject. Amongst the moderns, Schultz’s Classical Roman Law is probably the best.

  2. Dear Mr. Paterson-Seymour,

    Thank you for the clarification. I was under the impression that, at marriage, the wife was basically adopted into the husband’s family. It seems that was not the case. What an erudite readership I have!

  3. You are partly right about the wife being adopted into the husband’s family.

    There were two procedures by which the wife was so adopted – a religious ceremony called Confarreatio, which could only be performed at Rome by the Pontifex Maximus and the Flamen Dialis; it was confined to patricians, at least until the Lex Canuleia of 445 BC, which allowed patricians to marry plebeians or, secondly, a fictitious sale, called Coemptio (fictitious, because the woman was the seller and its effect was to vest all her property in the husband, or his paterfamilias) that was open to both patricians and plebeians (and also Roman citizens and Latins)

    The Law of the Twelve Tables of 449 BC provided that a wife who cohabited with her husband for a year should be “in manu mariti,” unless she absented herself for three nights (trinoctium abesse). This shows that “free marriage” existed at the time of the Twelve Tables, as the law only applied to a wife, not to a mere concubine. Consent was, at all times, at the heart of Roman marriage.

    Now, in these cases, the wife did pass into the husband’s family; she was said to be “filiae loco” (in the position of a daughter) and inherited a daughter’s share on his death. In “free marriage,” husband and wife did not inherit from each other. Even a wife “in manu” had the right of “repudium” (unilateral divorce).

    “Free marriage” seems to have become the norm, after the Second Punic War (218-202 BC), 150 years before the Empire. The concern seems to have been to preserve the property of the family and of the extended family, the “Gens,” or clan.

    Certain priests, notably the Flamen Dialis had to be married by Confarreatio and also be the child of such a marriage; Gaius tells us that a rescript of the divine Claudius provided that, in such cases, the marriage could be “ad sacra tantum” (for religious purposes only), the reason being that, at that time, no patrician woman would enter into such a marriage, nor would any patrician father sanction it.

  4. […] got other good stuff going on in the comments too.  For example, Michael Paterson-Seymour has been setting me straight on the place of patriarchy in Roman law.  Also, Kevin Jones has raised the interesting historical issue of the role of American Catholics […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: