# Gender studies, ancient society and law: new method of analysis

Arnaud Paturet

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Arnaud Paturet. Gender studies, ancient society and law: new method of analysis. International Journal for the Semiotics of Law / Revue internationale de sémiotique juridique, 2025, 1 (38), p. 1079-1091. hal-05433137

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Abstract. For a long time, Roman history, taken in its social and legal aspects, was written as a history of males, before Women's Studies and very recently Gender Studies tried to re-established a kind of balance, even if this last field is still little explored by law historians. The hierarchical structure of Roman society - reputed to have been highly macho - was not necessarily based on a simple sex relationship but on a gender relationship in which the individual's biological sex was not enough to fix his or her identity. Actually, many criteria relating to bodily attitudes in the broad sense (body language, clothing, hygiene, morality, personality etc.) were ultimately more important in assessing an individual's sexual identity. In this complex social game, the Romans could consider the existence of a *tertium genus hominum* between man and woman. In line with a detailed social analysis and the idea that law is an extension of social culture according to many anthropologists, we have to consider that interpretation of legal texts would require the use of a specific reading grid to assess their gendered issue. Through the exegesis of some roman legal texts relating to public and private spheres organization, we will illustrate how a gender-specific reading grid could possibly refine our knowledge of Roman law and roman society in general. We can see that legal system considers an identity in line with biological sex as observed in the treatment of specific legal cases. The latter remains marked by the binarity of the sexes, in a rigid categorization that legal operators have never succeeded in overcoming, and which has served as a matrix for subsequent legal systems during European legal history.

Key-words : Ancient History - Law - Gender - global analysis - method

Whatever the angle from which it is approached, Roman history is that of the city of the fathers, i.e. of Roman males. This is exactly how it is articulated in Latin literature, our main corpus of sources, itself written overwhelmingly by men: there are only 50 women among the 3,000 known authors<fnref n="1" />.

<footnote n="1">¹ There were a few women writers in ancient Rome, such as the poetesses Caecilia Trebula, Eucheria, Faltonia Betitia Proba, Julia Balbilla, Perilla, Sulpicia 1, Sulpicia 2 ; for literature: Cornelia Africana, Hypatia; for religion : Egeria, Perpetua; see also Fabula for medicine. Women make up a small proportion of ancient authors, but they were involved in work in many fields: history, philosophy, musical theory, grammar, astronomy, medicine, mathematics and so on. Poetry appears to be the field in which we find the most female authors. This would not be insignificant, as poetry is a literary genre in which sensibility can be displayed, a quality reputed to be feminine</footnote>
Other times, same customs: without diving deeply into the substance of all historiographical volumes, the titles and contents of many of them, even relatively recent ones, are quite significant. A collective work published in 1989 and edited by Andrea Giardina [2], a titled historian and pupil of the famous Santo Mazzarino, himself a legendary antiquarian, presents a synthesis of the great castes of Roman society and is entitled "L'homme romain" (original title: L'uomo romano). Ironically, all the chapters are written by men.

Yet a certain number of authors, from Ettore Pais to Georges Dumézil, have highlighted the primary role of women in the founding and historical narratives of ancient Rome. Since the 1970s and the pioneering work of Sarah Pomeroy: Goddesses, Whores, Wives, and Slaves: Women in Classical Antiquity [12], women have slowly found their place in historical literature. In France, we have to notice the existence of a dense volume edited by Pauline Schmitt Pantel and others: Histoire des femmes en Occident, t. I, L'Antiquité [14] with a great contribution of Yan Thomas. With regard to Roman law in particular, we should mention that the recent Oxford Handbook of Roman Law and Society [4], which aims to keep up with historical research by integrating sociological and anthropological data and methods, contains three chapters on gender, written respectively by Eva Cantarella (Women and Patriachy in Roman Law, p. 419-431), Matthew Perry (Defining Gender, p. 432-442) and Verena Halbwachs (Women as Legal Actors, p. 443-456). One might wonder why they are so anecdotal in a book that remains relatively conservative in most of its content. Reading the introduction to the book, which highlights its innovative dimensions, we find no mention of this new "gendered" reading of Roman sources, which would potentially renew a large part of a more global approach to Roman law in its deepest ideology. Finally, it should be noted that this latest work follows the momentum set in motion a few years earlier by the Oxford Handbook of Roman Studies [1], which contains a well-crafted chapter by Anthony Corbeill (Gender Studies. Ancient Roman Examine Gender, p. 220-233), which has the immense merit of being part of a cross-cutting synthesis with regards to social attitudes, grammar of names, representations etc. These thematically opened pages do not rely solely on the question of status, as jurists would. Such an approach would be tantamount to probing the ideological question of causes, in a profound interrogation, in all the fields accessible to the researcher, rather than just the legal consequences of these. The author cautiously concludes by explaining that many areas of Roman history, considered from a temporal or periodic point of view, remain to be explored from a gender perspective. The only limit would be our imagination and competences.

While the literature of Women's Studies, for example about slavery, has re-established a form of equilibrium [13, p. 57-87] [9, p. 157-167]<fnref n="2" />, it has also taken up certain prejudices, most of which have their origins in modern considerations: for example, it is assumed that eroticism is feminine, or that weaving is an activity reserved for women. Yet this dual approach, with the

<footnote>in Rome; this kind of technical composition shows how effective the literary education of women was, enabling them in time to compose verses in Latin. The two Sulpicia, particularly the first, who wrote in Augustus' time, were part of a patronage circle under the aegis of Marcus Valerius Messalla, which included famous poets like Ovid and Tibullus.</footnote>

<footnote n="2">² It has to be said that the question of gender is complicated to observe in the servile caste. Firstly, because of the homogeneity of slave status between men and women; and secondly, because of the paucity of available documentation. However, it is worth noting a kind of depreciation of the servile tasks performed by female slaves in ancient agronomy books.</footnote>
history of men on one side and that of women on the other, has contributed to a misguided compartmentalization, since it is not only biological sex that most structures Roman society, but rather the behaviours/attitudes that would be associated with each sex.

In this respect, the hierarchical structure of Roman society - reputed to be highly macho - is not based on a simple sex relationship, but on a gender relationship in a socio-mental universe where domination is situated on the side of masculinity and its supposed attributes, which also implies taking into account the other side of the mirror, since the masculine is necessarily defined in relation to the feminine, most often in a game of social-conventional oppositions.

We can see here the usefulness of gender as a category of historical analysis, following the work of Joan Scott and Eleni Varikas [15], to give new impetus to historical and legal literature. A similar approach was taken by Susan Dixon in her 2001 book : Reading Roman Women [3], which makes a major contribution to the gendered analysis of ancient sources. In the context of French historical literature regarding legal history, such initiatives are quite rare, if not non-existent. The ambition of the HLJP genre project is to propose a gendered grid for reading legal sources that could potentially be transposed to Roman antiquity. After a brief presentation of the cultural background of this society from a gender point of view, we will propose next an exegesis of some fundamental legal texts. Above all, it is fundamental to set out the context before analyzing the legal sources, based on the assumed principle that law is a powerful cultural vector, following the lead of American anthropologist Clifford Geertz [5, p. 98], and considering that legal argumentation often conceals the socio-cultural ideology behind it.

# I/ The cultural background of Roman society: the legitimacy of a gendered approach

Roman society was organized according to a rigorous division between men and women. Everyone was expected to behave in a manner befitting their status. These attitudes had to be understood on a very broad level: physical features, morphology, voice, posture, clothing, gestures, hygiene, behavior in general, appearance, involvement in specific activities, civic activities etc. They also included ethical and moral parameters. They also include ethical and moral parameters which are big part of roman values.

In this sense, Seneca the Rhetorician reminds us in his *Controversiae* (Contr. 9.2.17) that if the Praetor administers justice dressed as a woman or a slave, he commits a crime of majesty, since this was a virile office forbidden to women. By extension, the person in charge should not appear to be a woman or an individual of inferior status such as a slave. The sequence *in veste muliebri vel servili* used by the rhetor is more than clear. It does not, of course, imply a re-characterization of the protagonist's biological sex, which is necessarily male, but it does emphasize the need to match gender with the behavior expected in the public sphere in terms of virility. You can't perform a manly service while looking like a woman by the way you dress.

In terms of expected behavior, we find a reciprocal for the female sex in Valerius Maximus, a little-known Latin author of the 1st century A.D. He left a work of anecdotes classified by
themes, containing passages concerning law practices. One such passage concerns the pleading of cases, which is still reserved for men, but which may very exceptionally have involved women. Here is a reproduction of the passage in question:

Valère-Maxime 8,3,1-3. *Ne de his quidem feminis tacendum est, quas condicio naturae et verecundia stolae ut in foro et iudiciis tacerent cohibere non valuit. Maesia Sentinas rea causam suam L. Titio praetore iudicium cogente maximo populi concursu egit modosque omnes ac numeros defensionis non solum diligenter, sed etiam fortiter executa, et prima actione et paene cunctis sententiis liberata est. Quam, quia sub specie feminae virilem animum gerebat, Androgynen appellabant.*

TR.We must not pass over in silence those women whom neither their natural condition, nor the respect due to their matronly dress have been able to restrain to the point of keeping silent in the forum and the courts. Mesia of Sentinum pleaded her case as a defendant under the presidency of praetor L. Titius, in the midst of a great popular turnout. Having made her case point by point, not only thoroughly but also forcefully, she was acquitted on her first appearance and almost unanimously. She was nicknamed “the androgynous”, because underneath her feminine specificity, she showed a virile soul.

The fact that a woman could take on the role of lawyer was rare but not impossible, so Valerius Maximus (8, 3, 2-3 C) gives us other examples. One of these is C. Afrania, wife of Senator Licinius Bucco, whose name symbolized the outrageous behavior of women according to the author. He means that this attitude made her escape her condition. We should also mention Hortensia, daughter of Q. Hortensius, who defended the cause of women in front of the Triumvirs. In a different context, we have to think to the story of Perpetua episode. Under the reign of Geta, in the Severian era, she was a woman martyred as a Christian with her pregnant servant Felicitas. Perpetua had the vision of her transformation into a man to fight gladiators, before becoming herself again after victory. Perpetua's story emphasizes not only her condition as a matron, but also the transgressions of her social condition with regard to her faith [7, p. 93-95]<fnref n="3" />; [6, p 13-26].

There are many crucial points in Valerius Maximus’ text mentioned above, including the idea that women derive their condition from nature - even though the civilization of the city rigorously deviates from *natura* in that it constitutes its exact opposite, to the point that jurists quickly abandon this point of reference - or the symbolic places where gendered public activity is exercised, such as the forum as typical public space, and in which one must demonstrate behavior in keeping with one's sex and rank. It's the final sequence of the text quoted *supra* : *Quam, quia sub specie feminae virilem animum gerebat, Androgynen appellabant, that catches our attention. There is no reference to the biological identity of women: they are named as such: feminae* but it is clear that some behavior resexualizes or could regenderize them. However, there's no question of necessarily placing woman on the man side : the conjunction of feminine

<footnote n="3">³ The author describes his transformation into a “*miles Christi*” to fight an Egyptian who symbolizes the devil, and ultimately to defeat him.</footnote>
specificity including a virile soul would make her an androgyne : a hybrid figure, in a name, a nickname that situates her between the two social sexes.

We find this hybridization in the stories of Petronius (Sat. 21 ; 23 et 119), who paints a typical effeminate portrait of the *cinaedi*, the lascivious dancers who prostituted themselves when necessary. They are undoubtedly men (sometimes eunuchs), but described from the angle of their feminine behavioral part, which forges a social identity far removed from the virility that should normally derive from their biological sex. Certain Latin writers tell us that they constituted a *tertium genus hominum*, i. e. a third kind of human (Hist. Aug. Alex. Sev. 23.7⁴ ; Plin. Hist. Nat. 11.49⁵). This would take the form of an a-gendered parameter in cases where the presumption of belonging to one sex and the presence of attitudes referring to the other prevented some individuals from being placed within the two known and so exclusive sexed categories.

## II/ A new reading grid put to the test by a few emblematic legal sources

Once this cultural point has been established, it seems quite legitimate to attempt to objectify the gendered aspect of the Roman legal system, using a solid, as more as possible, method of examination. In this sense, the reading grid developed as part of the ANR HLJP Gender project, even if designed for application to the modern era, would seem to be a relevant tool if the user is cautious to integrate the usual epistemological precautions. For example, it has to be considered that the notion of gender (in its contemporary sense) or equality did not exist in the Roman world. However, when used with care, this protocol enables us to methodically explore ancient Roman legal norms and even Latin literature. The reading examination could be organized in three main stages:

1º/ Assess whether or not the source contains gender-specific terms (father, wife, husband etc.) or neutral and by extension ateo-specific (the minor), ethno-specific or socio-specific in reference to a social category in particular.

2º/ This initial philological analysis enables us to assess whether the source is gendered (binary or heterocentered), degendered, re-gendered or a-gendered.

3º/ The third element to take into account would be the text's vocation or its goal, i.e. whether the source is egalitarian, inegalitarian (particularly with regard to a sexual or gendered category) or equalizing, or even whether it provides for a separation between sexes.

These criteria are not exhaustive, but are intended to provide a solid basis for renewed textual analysis.

<footnote n="4">⁴ ...idem *tertium genus hominum eunuchos esse dicebat nec videndum nec in usu habendum a viris sed vix a feminibus nobilibus*.</footnote>

<footnote n="5">⁵ *Homini tantum iniuria aut sponte naturae franguntur, idque tertium ab hermaphroditis et spadonibus semiviri genus habent.*</footnote>
This reading grid - and in particular the first parameter - could be used connecting with lexical processing tools such as the *Amanuensis* software to obtain some quantitative results among Roman legal sources. For example, we can count (excluding declensions) 646 occurrences of the term *mulier*, 309 for *uxor* (married woman); 428 for *maritus* (husband); 367 for *mater* (mother); 1295 for *pater* (father). This data reinforces a well-known fact: we are dealing with a very "gendered" body of documentation, unbalanced in favor of the male sex, which is the one most concerned by legal operators, but for which we have no precise quantitative evaluation. We have to note that when a male is the protagonist of a text, we can find a women by symmetry. Consequently we have to consider the true limits of a quantitative parameter which is not an end but a tool among others.

As an experiment, we will analyze texts in various legal fields that could be considered representative: one on access to public office, another on the definition of adultery, and finally two short complementary texts on the legal categorization of sexual ambivalents. Let's start with the first:

Paul. 17 *ad ed*. D. 5. 1. 12. 2. *Non autem omnes iudices dari possunt ab his qui iudicis dandi ius habent: quidam enim lege impediuntur ne iudices sint, quidam natura, quidam moribus. natura, ut surdus mutus: et perpetuo furiosus et impubes, quia iudicio carent. lege impeditur, qui senatu motus est. moribus feminae et servi, non quia non habent iudicium, sed quia receptum est, ut civilibus officiis non fungantur.*

TR. Not everybody may be appointed judge by those with the right to appoint judge. Some of them are prevented by statute from being judge, some by nature, and some by custom. For example the deaf and dumb, the permanently insane (without lucid intervals), and the impubes are prevent by nature due to a lack of judgement. The statute prevents the appointment of those who have been excluded from the Senate. Women and slaves are excluded by custom, not because they lack judgment, but because it is accepted that they do not perform civic duties.

Here we find three normative counterbalances: firstly, nature, which would concern the deficient or impubescent. Here nature is not synonym of savage context, in opposition to civic area but it could be precisely assimilated to the common sense, considering body or age configuration, that prevents their appointment as judges. Secondly, the law, i.e. an imperative statement, forbids the appointment of those excluded from the senate. The exclusion of women and slaves, on the other hand, is dictated by custom, even though the jurist considers that both women and slaves are not lacking in judgment and could therefore fulfill these functions. We can deduce from this that it is the sole status of the aforementioned individuals that bars them from access to the office of *judex*.

In its final part, the text is clearly gendered, as it establishes a prohibition against women in a binarity that implicitly opposes them to men.

It is also inegalitarian in the sense that women are discriminated regarding access to the office of judge due to custom, which would refer to a common-sense or shared social conception that would establish their incompetence to such an extent that the law would not even need to specify
it, unlike men who would have been excluded from the Senate. It's worth remembering that the
application of the sex-specific criterion concerning women is intended to be universal, but
responds first and foremost to the contextualization born of the institution, such as marriage,
guardianship or, in this case, access to public office. The latter regularly treats women as legal
minors in an agreed, asymmetrical relationship between the woman and her father or husband.
That said, should the *pater* or *maritus* die, the woman becomes potentially sui juris in the
absence of a natural holder to exercise power over her. Roman jurists were quick to address
these exceptional cases: according to Gaius (*Institutes*, 1.144), the *veteres* wanted all women,
even those of full age, to be subject to perpetual guardianship on account of their feeble-
mindedness.

Of course, Roman legislation provides for exceptions to this principle, as early as the Law of
the XII Tables, for Vestal Priestesses for instance (Gaius, *Institutes* 1. 145), but the reminder of
this "intuitive" prejudice of women's lightness of mind (Gaius, *Institutes* 1. 190) is edifying in
a law textbook dating from the 2nd century BC emanating by Gaius.

The same Gaius (*Institutes* 1. 190), however, distances himself from this principle a little further
on in his manual, pointing out the weakness of the argument relating to women's lightness of
mind. This point of view seems to have long been a commonplace in legal argumentation
(Cicéron, *Pro Murena*, 12), court cases and political speeches (Tite-Live 34. 2-7)<fnref n="6" />. The
harshness of the argument clashes, however, with a practice that proves to be more flexible, as
Cicero (*Pro Murena*, 27) evokes the ascendancy taken by certain women over their own
guardians in a reversal that, precisely, shows that women intended to conduct their affairs with
rigor and constancy. It is interesting to note such a gap between social facts and the conservative
slogans present in certain discourses, which we might think are sometimes outdated in the social
imagination. Even so, the unequal nature of institutional discourse raises questions, even if
social practice helps to redress the balance.

We'd still have to clarify the notion of equality in Rome, in a society that would clearly be
unequal from the point of view of our contemporary canons. However, it remains very important
to understand that Roman society is hierarchical - in the contemporary sense of unequal - and
in that resides its structuration and paradigm. It would be completely inappropriate, therefore,
to use our scientific protocol to denounce a common parameter regarding the sources studied.
What is "commonly accepted" (*quia receptum est*) concentrates a set of societal parameters
which, in the social imagination, guarantee the continuity of social body and the correlative
maintenance of its order. The link between slaves (of either sex) and women is fundamental, as
both are subjects under the power of their fathers or husbands. Rome is the city of "Fathers", a
maxim that is eminently gendered and also statuto or socio-specific, for the father is not only a
man who must behave as such, he is the example at the head of the family over which his
authority extends in a life-long power. This father figure is the foundation of Roman ideology:
it underpins it and nourishes it. It is well known that, from the time of Augustus, the Prince took
on the title of *Pater patriae*, i.e. Father of the City of Fathers or, more precisely, Father of the

<footnote n="6">⁶ The author recounts a speech by Cato the censor, an emblematic roman figure whose conservative mind is legendary, in which he points out that women must necessarily remain under male authority.</footnote>
Father land to underline the link between the father and the civilian territory of the city. Such a qualifier seems to be deeply rooted in Roman tradition, since it was originally attributed to Romulus himself, which goes to show the tutelary importance of the paternal figure, which is here attached to the *patria* in its entirety in an incredible semantic fiction.

Let's now take a look at a text dedicated to adultery.

D.48.5.6.1 *Papinianus lib. 1 Adulteriis. Lex stuprum et adulterium promiscui et καταχρηστικώτερον appellat. sed proprie adulterium in nupta committitur; propter partum ex altero conceptum composito nomine: stuprum vero in virginem viduamve committitur, quod Graeci φθορᾶν appellant.*

TR. The law (Julia) refers to *stuprum* and adultery indiscriminately, and with rather a misuse of terms. But properly speaking adultery is literally committed with a married woman, this name being derived from the fact that a child is conceived another ; and *stuprum*, however, is committed against a virgin or widow: the Greeks call it corruption.

While *stuprum* (from adultery to debauchery), which details we'll leave aside here, is potentially committed outside marriage [8]<sup>7</sup> - i. e. outside the legal framework of procreation - Papinian indicates that adultery is committed with a married woman. By mentioning conception by someone other than the husband, the author implicitly refers to a male partner. This could give rise to two hypotheses: either the partner in question is single or married. This distinction has no major consequences in terms of the contempt suffered by the deceived husband, who will exercise similar repression ; nor does it have any specific implications for the adulterous wife since it is specifically the man who must above all demonstrate virtuous behavior. In symmetry, the woman would only be the tool to implement a pernicious act, and would not be the initiator, due to her reputed passivity. Our text is therefore implicitly gendered, binary, heterocentric and even asymmetrical. The main problem with adultery is that it calls into question the presumption of paternity in favor of the father within marriage, by envisaging the conception of a child with someone (*alterus*) other than the husband. The passage *ex altero conceptum*... constructs an adultery in which the woman is the object rather than the subject, as well as the utilitarian aspect of female gestation according to roman ideology : giving heirs to the father and renewing the body of citizens. This is confirmed by the repression of adultery. While in certain cases the husband potentially enjoys *ius occidendi* (right to kill) applicable to a lover of a lower caste than his own, the wife is spared - unless it is the justice of the paterfamilias that is exercised, as this must strike down both lovers - insofar as she would only have been the instrument of the adultery. Generally speaking and considering various texts contents, women are considered as wombs (*venter*) or a “matrix” containing children, over which the father has legitimate rights. There is a very ancient law in this sense, attributed to the kings of Rome and reported in D. 11. 8. 2 by Marcellus, which states that it is forbidden to bury a pregnant woman before having

<footnote n="7"><sup>7</sup> Since the time of Augustus, the lex Julia has drawn a distinction between *struprum*, conceived as a forbidden sexual relationship outside marriage (the relationship of an unmarried or widowed woman of honourable status with a free man or slave, married or unmarried) and adultery, which exclusively concerns the infidelity of a married woman.</footnote>
removed her child. This prohibition may have religious reasons, but it is undoubtedly intended
to preserve the father's rights over his offspring despite of the mother's death.

Finally, let's look at two ultimate texts, one by Ulpian and the other by Paul, which deal with
the legal treatment of hermaphrodites:

Ulp. 1 Sab. D. 1.5.10 *Quaeritur: hermaphroditum cui comparamus? Et magis puto eius sexus aestimandum, qui in eo praevalet.*

TR. He asks: With whom is a hermaphrodite comparable? I rather think each one must be
ascribed to that sex that is prevalent in his or her make-up.

Extreme cases - and hermaphroditism is undoubtedly one of them - are unparalleled laboratories
for understanding sex and gender relations; they are like catalysts for the mental images and
categorizations that unfold. We are dealing here with a binary norm, regenerated and even
resexualized. The question posed would call for a constant, almost essentialist response, but it
is doubtful that the jurist was asked this question as it stood, and it is possible that the compilers
of the Digest may have extracted this reflection from a broader analysis. It may well have been
on the occasion of a specific case to be decided, such as the hypothesis of whether a sexually
ambivalent person could perform a virile office, that a jurist would have ventured to propose
modalities for defining the sex of the ambivalent protagonist.

When it comes to determining the sex of a hermaphrodite, i.e. an intersex person or an
individual who has both sexes, it is necessary to resort to an expertise (*aestimatio*), in this case
an observation in the medical sense, in order to determine whether the individual is a woman
or a man, on the implicit assumption that he or she cannot be both.

It should be noted that the law is based on a binary dynamic, since the hermaphrodite is a sexual
category which, if it exists in the statement, will have to be abandoned each time the individual's
sex comes to condition his or her legal capacity. In the latter case, the individual will evolve
only through his or her projection into one or other sex, as a male or female hermaphrodite,
even though literary sources may mention a *tertium genus hominum* (third human gender), as
indicated sometimes in roman literature.

The law is concerned only with man or woman, and not with the intimate identity of the subject
or the behavioral part of the individual. Only external biological observation is taken into
account. Consequently, our norm is sexo-specific and the expression *cui in eo prevalet*
implicitly refers to male or female and aims to establish a separation between the two sexes. It
is potentially a matter of re-sexualizing and/or re-genderizing the intersex individual. This
reassignment procedure takes shape in another short passage from the jurist Paul, again in the
Digest:

Paul 3 Sent. D. 22. 5. 15. 1. *Hermaphroditus an ad testamentum adhiberi possit, qualitas sexus incalescentis ostendit.*

TR. Whether a hermaphrodite can witness a will depends of which sex is dominant in his or her person.
According to this short passage, if a hermaphrodite wants to act as a witness in a testamentary context, it is necessary to verify the actual functioning of the genitals when they are warmed up. Here again, we are talking about a physical examination, an external biological expertise that boils down to the subject's presumed sexuality, to the exclusion of his or her social behavior or feelings. Once again, the jurisconsult is dealing with a binary, regenerated or resexed norm, as the aim here is to assign a unique and probably permanent sexual identity to the hermaphrodite. The principle posed is not neutral, because it's not just a question of designating a gender: the right one must be designated. In this sense, our text underpins the unequal nature of Roman inheritance legal system, which essentially concerned men. In ancient Rome, many legal acts were only authorized to men, such as the role of testamentary witness, which was only open to hermaphrodites declared to be "male". This last hypothesis was desirable for the subject, as women existed little or not at all in the legal world, insofar as they were placed under the power of fathers or husbands. This was the whole point of the *patria potestas* concept, i. e. the father's power over the *res familiaris* (family property), which included wives, sons and daughters and slaves.

Over and above the specific case dealt by the jurist, the question of the legal existence of the hermaphrodite as a subject of law in his own right arises. This would be tantamount to asking if an a-gendered individual is not in itself disqualified within a Roman legal system organized in a binary fashion around man and woman. It has to be said at the outset that the categorization of the ambivalent individual is only questioned in the context of the case being decided and precisely on this occasion, with regard to the constraint of the facts and procedures involved. The presence of the term *hermaphroditus* in legal discourse suggests that the ambivalent person falls into the category of personae or potential subjects of law. We also find this presumptive element in the case of physiologically malformed individuals - to the point where their appearance would make them look at least in part like a monster or a prodigy - who are immediately named *liberi*, as if to mark their humanity and their automatic inclusion in the universe of law, even if this is questioned (Paul 4 *Sent.* D. 1.5.14). It is indeed the sexual ambivalence of the hermaphrodite that will be questioned, particularly in the context of legal capacities reserved exclusively for men in the law of succession. The question also arises as to the scope of an expert opinion on the subject of a hermaphrodite and its extension to other cases, even though we know that Roman jurists were very fond of the analogical approach. The sources at our disposal do not allow us to decide on this possibility.

Conclusion

A specific reading grid applied to the reading of Roman legal sources can enable us to seriously refine our knowledge of them from a gender perspective. This application argues for the possibility of a gendered analysis tool and transversal protocols potentially applicable to different historical contexts, notwithstanding certain precautions. In this case, the Roman world - mysogynous and unequal in favor of the male as we know - offers a wide range of behavioral diversity, where hybrid identities find expression and can be observed from a gender
perspective. In contrast to this environment, which in the literature produces the possible existence of a third gender through the acceptance of transgressions, the law makes an exception by establishing an identity in line with biological sex as observed in the treatment of specific legal cases. The latter remains marked by the binarity of the sexes, in a rigid categorization that legal operators have never succeeded in overcoming, and which has served as a matrix for subsequent legal systems during European legal history.

Beyond a gendered approach to the legal phenomenon at the historical level and in parallel to the social facts that shape its configuration, the question could be raised of the true relevance of a gendered reading grid. We know perfectly well that history forms a large part of the scientific and cultural aspect of law, insofar as the latter is particularly linked, as a technique and an argued response to given situations, to an ideological framework that is built up over time. Applying a gendered and transhistorical reading grid to different moments in the history of the law, its practice and the social events that shape it, reveals without any doubt some lines of continuity between eras, avoiding the narrative trap of institutional revolutions. We know, for example, that the French Revolution marked a fundamental break in the history of French institutions, with the abrupt transition from Monarchy to Republic. On the one hand, this discontinuity was built on a foundation of equality for all, since the 1789 Declaration of the Rights of Man and of the Citizen, in line with its primary objective of public abolishing social classes and privileges, made no distinction insofar as the term ‘man’ included all components of humanity, and therefore individuals of both sexes. On the other hand, private regulation is outside the public sphere, and a careful reading of the 1804 Civil Code, including the debates that preceded its drafting, indicates that civil legislation is gendered and unbalanced in favour of the father and therefore of males [10].

As far as contemporary law is concerned, it would be interesting to assess the usefulness of such an approach with our gendered methodology, even though French law, to take this example, incorporates clear anti-discrimination legislation. This is the purpose of art. 225-1-1 of the Criminal Code, which condemns any discrimination between natural or legal persons<fnref n="8" />.

Constitue également une discrimination toute distinction opérée entre les personnes morales sur le fondement de l'origine, du sexe, de la situation de famille, de la grossesse, de l'apparence physique, de la particulière vulnérabilité résultant de la situation économique, apparente ou connue de son auteur, du patronyme, du lieu de résidence, de l'état de santé, de la perte d'autonomie, du handicap, des caractéristiques génétiques, des mœurs, de l'orientation sexuelle, de l'identité de genre, de l'âge, des opinions politiques, des activités syndicales, de la qualité de lanceur d'alerte, de facilitateur ou de personne en lien avec un lanceur d'alerte, au sens, respectivement, du I de l'article 6 et des 1° et 2° de l'article 6-1 de la loi n° 2016-1691 du 9 décembre 2016 précitée, de la capacité à s'exprimer dans une langue autre que le français, de l'appartenance ou de la non-appartenance, vraie ou supposée, à une ethnie, une

<footnote n="8">⁸ Code pénal Art. 225-1-1 : « Constitue une discrimination toute distinction opérée entre les personnes physiques sur le fondement de leur origine, de leur sexe, de leur situation de famille, de leur grossesse, de leur apparence physique, de la particulière vulnérabilité résultant de leur situation économique, apparente ou connue de son auteur, de leur patronyme, de leur lieu de résidence, de leur état de santé, de leur perte d'autonomie, de leur handicap, de leurs caractéristiques génétiques, de leurs mœurs, de leur orientation sexuelle, de leur identité de genre, de leur âge, de leurs opinions politiques, de leurs activités syndicales, de leur qualité de lanceur d'alerte, de facilitateur ou de personne en lien avec un lanceur d'alerte au sens, respectivement, du I de l'article 6 et des 1° et 2° de l'article 6-1 de la loi n° 2016-1691 du 9 décembre 2016 relative à la transparence, à la lutte contre la corruption et à la modernisation de la vie économique, de leur capacité à s'exprimer dans une langue autre que le français, de leur appartenance ou de leur non-appartenance, vraie ou supposée, à une ethnie, une Nation, une prétendue race ou une religion déterminée.</footnote>
At the same time, however, French law is built around a strict legal differentiation of the sexes, already known in ancient Rome, as indicated by article 57 of the French Civil Code⁹, which organizes the legal universe around the man and the woman, excluding on principle atypical sexual configurations or trajectories. To be fair, it is true that gender reassignment procedures are possible, in accordance with the principles set out in articles 61-5 of the Civil Code and 1055-5 of the Code of Civil Procedure, at the cost of a lengthy procedure with the Tribunal de Grande Instance of the protagonist birthplace or current residence. According to these legal texts, it would appear that French legislation discriminates against transgender people, who are the only ones who have to prove their identity compared with cisgender people. A French ecologist senator tabled a bill on 2 April 2024¹⁰ aimed at making it easier for people to change their sex in their civil status; the bill came up against conservative political views. It is clear that this is a sensitive subject, especially in France, that arouses passions and opposition in the public arena, whether in politics or the media. This debate deserves to be illuminated from the angle of a gendered study of legal sources, whether historical insofar as our laws are the product of a legal and cultural history that has shaped them, or contemporary, because a reading of the law through the prism of gendered criteria can highlight through objective parameters how it proves to be unequal. The proven existence of these inequalities would be a major problem insofar as equality between citizens remains a principle enshrined in Article 1 of the French Constitution¹¹, which is at the top of the hierarchy of norms.

Nation, une prétendue race ou une religion déterminée des membres ou de certains membres de ces personnes morales ».

⁹ Code civil Art. 57 « L'acte de naissance énoncera le jour, l'heure et le lieu de la naissance, le sexe de l'enfant, les prénoms qui lui seront donnés, le nom de famille, suivi le cas échéant de la mention de la déclaration conjointe de ses parents quant au choix effectué, ainsi que les prénoms, noms, âges, professions et domiciles des père et mère et, s'il y a lieu, ceux du déclarant. Si les père et mère de l'enfant ou l'un d'eux ne sont pas désignés à l'officier de l'état civil, il ne sera fait sur les registres aucune mention à ce sujet ».

En cas d'impossibilité médicalement constatée de déterminer le sexe de l'enfant au jour de l'établissement de l'acte, le procureur de la République peut autoriser l'officier de l'état civil à ne pas faire figurer immédiatement le sexe sur l'acte de naissance. L'inscription du sexe médicalement constaté intervient à la demande des représentants légaux de l'enfant ou du procureur de la République dans un délai qui ne peut être supérieur à trois mois à compter du jour de la déclaration de naissance. Le procureur de la République ordonne de porter la mention du sexe en marge de l'acte de naissance et, à la demande des représentants légaux, de rectifier l'un des ou les prénoms de l'enfant ».

¹⁰ https://www publicsenat fr /actualites societe /une-proposition-de-loi-pour-faciliter-le-changement-de-sexe-a-letat-civil-deposee-au-senat ; regarding the precise text of the proposition : https://www senat fr /leg /ppl23-490 html.

¹¹ https://www.legifrance.gouv.fr/loda/id/LEGISCTA000006095820 ; Constitution de 1958 Art 1er : La France est une République indivisible, laïque, démocratique et sociale. Elle assure l'égalité devant la loi de tous les citoyens sans distinction d'origine, de race ou de religion. Elle respecte toutes les croyances. Son organisation est décentralisée.
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