I Ask You to Give Me a Guardian: Female Guardianship and the Influence of Christianity upon it in Late Antiquity

Abstract

While previous scholars have claimed that the Roman tutela mulierum or guardianship over adult women disappeared in the fourth century CE, Late Antique Greek-language contracts continue to reference both the presence of a guardian and the explicit absence of a guardian (originally an exception known as the ius liberorum). This erroneous perception of the decline and disappearance of guardianship is a result of overreliance on the normative legal texts, namely the Theodosian and Justinianic Codes. Similarly, scholarship has seen a tendency to ascribe any and all fourth century changes to Christian influence. This perspective has recently become more nuanced, and the period is now understood to be one of both religiously motivated change, for example, in standards of morality and sexuality, and of continuity, for example, in law and contractual habits.

Employing theoretical and methodological frameworks from the sociology of law and gender studies, this dissertation seeks to analyze and track the evolution of guardianship throughout the Roman Empire, to better understand how and why it evolved as it did, not only in theory, but also in practice. It consists of two parts: Using primarily legal source material, Part I establishes a foundational understanding of Roman family hierarchy (Ch. 1), general categories of Roman guardianship (Ch. 2), and the effects of citizenship on legal and contractual habits (Ch 3). Using contracts and other documentary texts with at least one female signatory, Part II investigates contracts from the century after universal enfranchisement (Ch 4), as well as from the remainder of Late Antiquity (Ch. 5) to trace and analyse the practice of guardianship throughout the period.

This dissertation concludes that while the tutela mulierum and guardianship over adult women experienced an evolution throughout Late Antiquity, it was not caused by the rise of Christianity or by any Christian influence. Rather, this evolution, towards husbands as guardians or at least participants in their wives' contracts, stemmed from a long-term Roman tendency towards a breakdown of the absolute power of the patria potestas and the prioritization of the nuclear and cognate family over agnate family in financial and inheritance legislation. This, combined with the influences of Hellenistic and local law following the Constitutio Antoniniana, led to a clear shift in the contractual agency of various categories of women, specifically unmarried women and widows, who could act without any male participation or oversight at all. Married women, on the other hand, operated with the assistance of their husbands.

Nonetheless, there is also evidence for continuity. A form of guardianship or male oversight did persist throughout Late Antiquity, as did an exemption, despite the fact that the responsibilities of the tutor were generally combined with the various other roles and responsibilities of the husband. Women continued to have male involvement in their contracts; guardianship did not fully disappear; and women's legal position or agency was not significantly bettered, either as a result of changes to guardianship or as a result of religious change.

In sum, then, this dissertation is the first longue durée study of the tutela mulierum which takes both the classical and Late Antique evidence into account. As such, it not only advances knowledge by providing an analysis of the entire life span of the practice of adult female guardianship in Rome, but also provides transferable insights into the long-term evolution of other Roman legal practices, as well as into the effects of the widespread adoption of Christianity on Roman law.