6.4 The Means of Accomplishing part 4

The protection of individual autonomy varied as sharply in ancient Rome as between Athens and Sparta. With Rome, however, there was a progression from rights being male citizens’ privileges to recognizing those rights in everyone. That transition loosely matched the change from the Roman Republic to Imperial Rome (27 CE).

The Roman Republic (509 BCE) began with the overthrow of the Roman Kingdom. Similar to Athens about ten percent of the people in the Roman Republic could vote. In forming the new government, the tribes swore to never again be ruled by a single figure. The resulting government had two leaders and a senate. The original three tribes expanded in number, but Rome did not create a true democracy for even the citizens, Instead, the republic was a plutocracy where wealth effectively determined senate membership. Once again, the regulation of citizens’ wives highlighted the disparity in the accepted individual autonomy

Citizenship conferred rights and individual autonomy. To retain the tribes’ power, by 485 BCE the patricians (noble families) stripped the plebeians (free commoners) of their right to vote. The government based Roman citizenship on civitas: being able to trace one’s ancestry to the original tribes, not residence. Civitas required both parents being citizens who had an official marriage (iustae nuptiae). With later exceptions, citizens marrying non-citizen forfeited their citizenship. Civitas by bloodline was similar to Jewish identity arising from being born of a Jewish women.

The Laws of the Twelve Tables (450 BCE) and customs established the rights of citizenship. Similar to Athens, the ten percent of Roman Republicans who could vote were men. Women citizens could not vote. The Roman Republic did not govern using universal laws. Citizens were protected by the jus civiles. Citizens, for example could not be tortured or crucified. Everyone else was governed by the jus gentium.¹ Roman law also distinguished between jus scriptum, the laws created by the government and jus non scriptum, the unwritten laws of nature that exceeded the authority of government. English common law adopted that model.

Three principles defined owners’ rights over their property. Usus was the right to use a thing for necessary purposes or pleasure. Frutus was the right to goods created by your property or effort. Abusus was the right to sell, give, or destroy your property. Within the family these were male citizens’ rights because Roman Republic women were property. The governing authority, patria potestas, gave the oldest men in the family line life and death control over all family property, and extended across generations to children and grandchildren.

Roman  acceptance or rejection of women’s individual autonomy as citizens is clear in the rules governing the two types of marriage. Preserving citizenship required citizen men marry women citizens “with hand” (marriage cum manu). For citizens, marriage transferred breeding stock from father to husband, typically as political alignments. As in Athens, twelve to fourteen-year-old girls were wed to older men. Echoing tribal wars and marriage by capture, the husband ripped the young woman from her mother’s arms. Any property she had or gained became her husband’s. She lost her dowry and the right to inherit from her family of origin. Being property, she had no rights and was subject to the rules of property by her husband. Usus meant she had no say over how or when her body was used. Children, by fructus, were the husband’s. By abusus the head of the family (paterfamilias), then husband held life and death authority over her and any children. While it seems inconsistent, women could get abortions because the fetus was not a person until birth. At birth, if the paterfamilias was displeased, he could kill the child. That was usually done by abandonment: throwing the infant into the street or trash heap.

Marriage cum manu was so onerous that many wives and their fathers cheated. The transfer of the women wasn’t complete until the husband and wive slept under a common roof for a full year. Believing punishment for any transgression might be less harsh from her father, some daughters visited their fathers’ house alone for three days before the year completed. That restarted the year countdown. As Imperial Rome (27 BCE) emerged, men’s authority lessened. The life and death authority waned. By the second century CE only priests married cum manu, but only until they could get the law revoked.

In Republican Rome non-citizens and citizen with non-citizens couples turned to a common law marriage: marriage sine manu (without hand). By the beginning of Imperial Rome marriage sine manu increasingly replace cum manu for citizens. Those marriages focused less on uniting powerful houses. The women were typically fifteen to twenty. The simple, informal ceremony had no mock bride capture. The woman could inherit, and retained her property and legal rights. She could initiate divorce. Her husband held no life or death authority over her or her children.

Despite its long tradition of male entitlement, marriage cum manu failed. Noble Roman families could not force their daughters to accept the total erasure of their lives. In 445 CE, justae nuptiae recognized marriage between a citizen and non-citizen, jus conubii, without the loss of citizenship.

The expansion of women’s autonomy in marriage laws reflected a growing acceptance that nature endows every person with the same rights. The transition from jus civilies, laws serving only Roman citizens, to juris gentium, laws serving everyone in the empire codified in law protection despite race, culture, and gender differences. When people claim nature or western civilization have always confined women to a subservient, “traditional” role they are intellectually and historically dishonest. The historical record from the Middle East, Athens, Sparta, and Rome makes clear that denying women personal autonomy and financial independence has been men’s deliberate effort to subjugate women. The question then becomes, “How did the autonomy women gained in Imperial Rome disappear?

1 By the beginning of the third century CE jus gentium extended to all people because rights were dictated by nature.