Littérature scientifique sur le sujet « Tutela mulierum »

The first symptom of the decline of the institution of tutela mulierum was tutoris optio. Since Augustus women possessing three children were free from tutela (G. I. 145, 194). However at was only Claudius’ activity — mainly as the result of lex Claudia (G. I. 147, 171), but also due to the extension of the privilege ins trium liberorum (Svet. Claud. 18.2.—19), as well as due to SC an the strength of which in case of tutor’s absence it was possible to appoint another one (G. I. 173) — that caused a complete obsolescence of tutela mulierum in relation to freeborn women. Tutela mulierum in the days of Gaius was kept only in relation to freed women.

Przedmiotem rozważań autorki jest fragment pochodzący z Instytucji Gaiusa. Jurysta kwestionuje w nim pogląd veteres, którzy uważali, że dojrzałe kobiety sui iuris powinny pozostawać pod opieką z powodu levitas animi (braku roztropności). W literaturze przedmiotu przyjmuje się, że Gaius patrzy na tutela mulierum z perspektywy historycznej i w swoim wykładzie na temat tej instytucji informuje o zaniku opieki nad kobietami, zwłaszcza nad kobietami wolnourodzonymi. Jednak analiza gramatyczna tekstu (G. 1,190) wskazuje, że w okresie, w którym prawnik pisał swój podręcznik, mogły zdarzać się sytuacje, w których opieka testamentowa lub sądowa była ustanawiana również dla ingenuae.

Este estudio tiene como objetivo un intento de plasmar la incidencia que la normativa jurídica romana tuvo en la consecución a lo largo del tiempo de mayores cotas de libertad por parte del elemento femenino: ello se manifiesta de forma muy especial en ciertos aspectos como la legislación matrimonial, la ley sobre el adulterio, la tutela mulieris o el régimen dotal.

Il presente contributo propone una breve rifl essione sulla tutela del coniuge “debole” nel diritto romano, alla luce degli strumenti previsti a favore della donna a seguito dello scioglimento del matrimonio. A tal fi ne, sono presi in esame gli istituti della dote e della donazione nuziale (ante e propter nuptias), quali apporti patrimoniali funzionali alla vita coniugale. In particolare, viene considerato il regime giuridico di entrambi in conseguenza del divorzio, attraverso un riferimento alla restituzione e alle trattenute dotali (retentiones), nonché all’usufrutto legale della donazione nuziale in favore della moglie. Il lavoro si sofferma poi sull’obbligo alimentare nei confronti della prole, come risultante dal senatoconsulto Planciano, relativo al riconoscimento dei fi gli nati post divortium. In ciascuno di tali istituti emerge non soltanto una logica di favor mulieris, ma anche e soprattutto di favor matris, suggerendo la conclusione che si tratti di strumenti volti alla tutela della donna in quanto mater (oltre che moglie), più che della donna in quanto (semplicemente) uxor. This paper proposes a brief refl ection on the protection of the “weak” spouse in Roman law, in the light of the instruments provided for women following thedissolution of marriage. To this end, the institutes of dowry and nuptial donation (ante and propter nuptias) are examined, as capital contributions functional to married life. In particular, the legal regime of both is considered as a consequence of divorce, through a reference to restitution and dotal withholdings (retentiones), as well as the legal usufruct of the nuptial gift in favour of the wife. The work then dwells on the alimony obligation towards the offspring, as resulting from the senatus consultum Plancianum on the recognition of children born post divortium. In each of these institutions there emerges not only a logic of favor mulieris, but also and especially of favor matris, suggesting the conclusion that these are instruments aimed at protecting women as mater (as well as wife) rather than women as (simply) uxor.

Women in Rome always took a back seat to the men; in fact and law, the woman was subordinate to her husband, or pater; she was subject to perpetual tutelage and had no political rights. The fact that right from the beginning, the roman family was not based on blood ties but rather on the common bond of being subject to the authority of a pater familias determined the place of women both in the family and within society. However, this element of potestas which kept the agnatic family together and meant that it was regarded as such, evolved alongside the changes in the way in which the family was understood and therefore, affected the legal status of those subject to the power of the pater, specifically, that of women. Indeed, over the course of the roman Republic, particularly towards the end, this situation of total incapacity of women began to crumble due, to a great extent, to the economic position of some of them and to their social status. Thus, by way of praxis, roman women gradually gained access to a certain level of autonomy.

Throughout the present research, with a mainly chronological approach, I located the key points of the discipline of the tutela mulierum. The main goal has been the one of clarifying the nature and the function of the institution. For this purpose it has been useful to highlight the connection between the tutela mulierum and the woman’s patrimonial capacity; in particular I tried to demonstrate that the tutelary institution had found its origin, in ancient age, in conjunction with the woman’s purchase of the ability to inherit ab intestato. The woman’s guardianship was connected to her constant consideration as a subject incapable of acting due to her physical and spiritual weaknesses, which represented the ostensible reason of the underneath position of the mulier a tutela. Also the tutelary institution has conserved in time the same nature and original function: the hereditary interests of the near relatives of the woman had always been protected instead of the upheld person herself. Once highlighted the main points of the guardianship’s discipline, they have been more comprehensible, as a consequence, the reasons why its story is a gradual downfall. The unchangeability of the tutelary regime has bumped into the social-economic progress indeed, which has also caused the change of the family’s needs, so that it was not necessary anymore to keep intact the family patrimony. In effect, starting by the middle Republic, the jurisprudence, the magistrature and the legislation, directly or through an indirect way, got started some initiatives directed to promote the woman’s negotiation autonomy, weakening the tutelary institution, that, on the other hand to what expected, kept subsisting until the late classical age, because deeply bounded to the image of the woman, when there had been an overturn of prospective, recognizing to the mulier the role of guardian of her children.

Regardless of their age, under the tutorship were minors and women who weren't under the paternal authority or husbands manus. This work is oriented toward the tutelage of women, and it will present women's position in ancient law, as well as the reasons for the establishing of the institution of tutelage, the ways it has been established in individual cases and on the authority of the tutor. Also, this work would give the overview of the tutelage and abandonment of it, that happened in the changed social and economical circumstances, especially those in the family relations, that have occurred in the period of the fall of the Republic.

Livia’s involvement in the case of L. Piso against Urgulania opens this investigation into the powers imperial women were granted or thought to enjoy. Context is set by comparing women considered powerful in the Republic, foreign queens, and the few non-imperial elite women noted in Rome of the principate. Historiography reflects the customs and laws affecting Roman women generally, including prohibition from politics, the military, and legal advocacy for another; patria potestas; and tutela mulierum. Although imperial women usually controlled their own financial resources, such as brickyards, dwellings, and patronage, their self-restraint and modesty were ideals, as seen in the Senatus Consultum de Pisone patre. Octavia and Livia received special grants in 35 BCE; Livia, more honors in 9 BCE, and more in 14 CE, including the title Augusta. The chapter concludes that imperial women had no institutional powers after these early exceptional dispensations accorded to Octavia and Livia.