La criminalisation des violences sexuelles faites aux femmes est le résultat d’une longue évolution dans le monde romain : si la pénalisation des rapports sexuels illicites s’opère à partir du ier siècle av. notre ère à la suite de la promulgation de la loi Iulia de adulteriis, un édit de Constantin datant probablement de 326 réprime pour la première fois le raptus comme crime distinct. Le principal écueil que pose cette évolution législative est d’ordre sémantique, la notion de viol n’étant (...) pas juridiquement définie. Durant les premiers siècles de l’Empire, ce problème se reflète non seulement dans le discours du droit, mais aussi dans le méta-discours que les écoles de rhétorique tiennent. La présente étude met en relation les deux discours pour examiner des éléments-clés de la logique éducative à partir de laquelle les Romains analysaient les catégories relatives à ce que nous entendons aujourd’hui par “viol”. Elle permettra de constater que la société romaine du Haut Empire avait une forte conscience du phénomène dans ses aspects les plus problématiques, et peut-être même des réponses aux défis forgés par le droit à son égard. (shrink)

Polygamy, forced marriage, female genital mutilation, punishing women for being raped, differential access for men and women to health care and education, unequal rights of ownership, assembly, and political participation, unequal vulnerability to violence. These practices and conditions are standard in some parts of the world. Do demands for multiculturalism — and certain minority group rights in particular — make them more likely to continue and to spread to liberal democracies? Are there fundamental conflicts between our commitment to (...) gender equity and our increasing desire to respect the customs of minority cultures or religions? In this book, the eminent feminist Susan Moller Okin and fifteen of the world’s leading thinkers about feminism and multiculturalism explore these unsettling questions in a provocative, passionate, and illuminating debate. Okin opens by arguing that some group rights can, in fact, endanger women. She points, for example, to the French government’s giving thousands of male immigrants special permission to bring multiple wives into the country, despite French laws against polygamy and the wives’ own bitter opposition to the practice. Okin argues that if we agree that women should not be disadvantaged because of their sex, we should not accept group rights that permit oppressive practices on the grounds that they are fundamental to minority cultures whose existence may otherwise be threatened. In reply, some respondents reject Okin’s position outright, contending that her views are rooted in a moral universalism that is blind to cultural difference. Others quarrel with Okin’s focus on gender, or argue that we should be careful about which group rights we permit, but not reject the category of group rights altogether. Okin concludes with a rebuttal, clarifying, adjusting, and extending her original position. These incisive and accessible essays — expanded from their original publication in Boston Review and including four new contributions — are indispensable reading for anyone interested in one of the most contentious social and political issues today. The diverse contributors, in addition to Okin, are Azizah al-Hibri, Abdullahi An-Na’im, Homi Bhabha, Sander Gilman, Janet Halley, Bonnie Honig, Will Kymlicka, Martha Nussbaum, Bhikhu Parekh, Katha Pollitt, Robert Post, Joseph Raz, Saskia Sassen, Cass Sunstein, and Yael Tamir. (shrink)

The forced marriage of minors is child abuse, consequently duties exist to stop them. Yet over 14 million forced marriages of minors occur annually in developing countries. The American Bar Association concludes that the problem in the US is significant, widespread but largely ignored, and that few US laws protect minors from forced marriages. Although their best chance of rescue often involves visits to health care providers, US providers show little awareness of this growing problem. Strategies (...) discussed to stop forced marriages include recommendations from the UN, the ABA, and the UK. The author anticipates and responds to criticisms that first, no duty to intervene exists without better laws and practice guidelines; and second, that such marriages are not child abuse in traditions where parental rights or familism allegedly justify them. (shrink)

This unique publication offers a complete history of Roman law, from its early beginnings through to its resurgence in Europe where it was widely applied until the eighteenth century. Besides a detailed overview of the sources of Roman law, the book also includes sections on private and criminal law and procedure, with special attention given to those aspects of Roman law that have particular importance to today's lawyer. The last three chapters of the book offer an overview (...) of the history of Roman law from the early Middle Ages to modern times and illustrate the way in which Roman law furnished the basis of contemporary civil law systems. In this part, special attention is given to the factors that warranted the revival and subsequent reception of Roman law as the 'common law' of Continental Europe. Combining the perspectives of legal history with those of social and political history, the book can be profitably read by students and scholars, as well as by general readers with an interest in ancient and early European legal history. The civil law tradition is the oldest legal tradition in the world today, embracing many legal systems currently in force in Continental Europe, Latin America and other parts of the world. Despite the considerable differences in the substantive laws of civil law countries, a fundamental unity exists between them. The most obvious element of unity is the fact that the civil law systems are all derived from the same sources and their legal institutions are classified in accordance with a commonly accepted scheme existing prior to their own development, which they adopted and adapted at some stage in their history. Roman law is both in point of time and range of influence the first catalyst in the evolution of the civil law tradition. (shrink)

Serious gender-based crimes were committed against women and girls during Sierra Leone’s decade-long armed conflict. This article examines how the Special Court for Sierra Leone has approached these crimes in its first four judgments. The June 20, 2007 trial judgment in the Armed Forces Revolutionary Council case assists international criminal law’s limited understanding of the crime against humanity of forced marriage, but also collapses evidence of that crime into the war crime of outrages upon personal dignity. The February (...) 22, 2008 appeals judgment attempts to correct this misstep. In contrast, the August 2, 2007 trial judgment in the Civil Defence Forces case is virtually silent on crimes committed against women and girls, although the May 28, 2008 appeals judgment attempts to partially redress this silence. This article concludes that the four judgments, considered together, raise the specter that the Special Court could potentially fail to make a significant progressive contribution to gender-sensitive transitional justice. (shrink)

An examination of case law on forced marriage reveals that in addition to physical force, the role of emotional pressure is now taken into consideration. However, in both legal and policy discourse, the difference between arranged and forced marriage continues to be framed in binary terms and hinges on the concept of consent: the context in which consent is constructed largely remains unexplored. By examining the socio-cultural construction of personhood, especially womanhood, and the intersecting structural inequalities (...) that constrain particular groups of South Asian women in the UK, we argue that consent and coercion in relation to marriage can be better understood as two ends of a continuum, between which lie degrees of socio-cultural expectation, control, persuasion, pressure, threat and force. Women who face these constraints exercise their agency in complex and contradictory ways that are not always recognised by the existing exit-centred state initiatives designed to tackle this problem. (shrink)

Roman Law is an important legal systematic that contains important codings of world law history. This legal system not only affected Continental Europe, but also the Near East, which was a period under its domination. Especially in the Justinian period, the law collection that emerged as a result of the legal studies starting from the East Roman capital is considered as a monumental work by many historians and jurists. Researchers who praise Corpus Juris Civilis are right. However, this (...) selection, which is one of the most effective law coding, is far from being practical. For this Leo III prepared his law book called Ecloga. Referred to as the first Christian law book, this work was later expanded with some additions. Ecloga was given its final shape during the period of Empress Irene. Irene is one of the strongest female figures in Roman history. Emperor Constantine V married his son Leo (who is from his first wife Çiçek Hatun, the Caspian Princess) to Irene. Irene was the daughter of an ordinary family. She was Athenian as origin. However, Athens was not a city as flashy as it was in ancient times. At the same time, the Athenians were against icon-breaking, which was the official ideology of the empire. It was really interesting that Irene was chosen by Constantine V as wife for his son Leo. After the death of Constantine V, Leo IV acceded to the throne without any problems. The fact that Leo IV had chronic tuberculosis prevented him from state administrations. Actually, it was Irene who filled in this gap. After the early death of Leo IV, due to the aforementioned disease, his 10-year-old son Constantine VI became officially regent. After killing her son by abacina-tion Irene became the sole owner of the throne. In the ongoing process, she abused law and religion to maintain her power. Irene’s first law supplement was on oaths. There were many references to the Holy Book in the annex of this law. It was mentioned that it is not a sin to swear in the Old Testament, but it is now forbidden to swear with the New Testament. In addi-tion, the law stipulates that the oath is the way to deny God precisely after lying. However, it was claimed that the oath tradition to the Roman society passed through the Hebrews. Un-doubtedly, Irene used the text of this law to prove that the oath of devotion of the majority of the eastern Roman army, allegedly to her son Constantine VI, was invalid. Because in the Ro-man army, fulfilling the necessary oath and loyalty to the emperor were in front of everything. It was possible for the empress to take over the throne with this proclaimed law article that the vows of the soldiers who swore in order to remain committed to Constantine VI within the army were void. It is obvious that Irene was trying to prevent a possible coup attempt within the army. The empress’ second annex to the law concerns those who married for the third time. The law was titled “About those who illegally contract to third or later marriages and about those who marry their own slaves”. In Christianity, it was allowed to marry for the sec-ond time after the death of one of the spouses. There were certain phrases that marriages to be held for the third time in the Holy Book were forbidden. It is clear that Irene had a political benefit in reminding this ban. Because her power was based on her marriage with Leo, who was the son of Constantine V from his first wife. Their rivals were the sons of Constantine V from his third marriage. Therefore, with this law, she eliminated her political rivals. (shrink)

Throughout the medieval period law was seen as the product of social groups and associations that formed legal orders, as Max Weber elaborates, "either constituted in its membership by such objective characteristics of birth, political, ethnic, or religious denomination, mode of life or occupation, or arose through the process of explicit fraternization." During the second half of the Middle Ages, roughly the tenth through fifteenth centuries, there were "several distinct types of law, sometimes competing, occasionally overlapping, invariably invoking different traditions, (...) jurisdictions and modes of operation." Types of law included imperial and royal edicts and statutes, canon law, unwritten customary law of tribes and localities, written Germanic law, residual Roman law, municipal statutes, the law of merchants and of guilds, and in England the common law, on the continent the Roman law of jurists after the twelfth century revival of the Justinian Code. The types of courts included various imperial and royal courts, ecclesiastical courts, manorial or seigniorial courts, village courts, municipal courts in cities, merchant courts, and guild courts. Serving as judges in these courts, respectively, were kings or their appointees, Bishops and abbots, barons or lords of the manor or their appointees, local lay leaders, leading burghers, merchants, and members of the guild. These various positions were not wholly separate-many high government officials were in religious orders, while Churches held landed estates that came with local judicial responsibilities. "Bishops, abbots and prioresses, as lords of temporal possessions, controlled manorial or honorial courts at which they sometimes, though not generally, presided in person, exercising responsibility for criminal and customary law." "The result was the existence of numerous law communities," Weber wrote, "the autonomous jurisdictions of which overlapped, the compulsory, political association being only one such autonomous jurisdiction in so far as it existed at all." Jurisdictional rules for judicial tribunals and the laws to be applied related to the persons involved and the subject matter at issue. The personality principle linked law to a person's community or association, and under feudalism property ownership came wrapped together with the right to judge those tied to the property. "Demarcation disputes between these laws and courts were numerous." Jurisdictional conflicts arose especially in relation to ecclesiastical courts, which claimed broad jurisdiction over personal status laws (marriage, divorce, inheritance) and moral crimes, as well as church property and personnel, matters which regularly overlapped with the jurisdiction of other courts. Furthermore, different bodies of law could be applicable in a given court in a given case. "It was common to find many different codes of customary law in force in the same kingdom, town or village, even in the same house, if the ninth century bishop Agobard of Lyons is to be believed when he says, 'It often happened that five mem were present or sitting together, and not one of them had the same law as another.'" In long settled areas, the personal law of communities became local customary law. People living within cities were subject to municipal statutes and customary law on certain matters (penal law, procedural), and the community law to which they were attached. (shrink)

Anthropological scholarship after Marilyn Strathern does something that might surprise lawyers schooled in the tradition of ‘law and society’, or ‘law in context’. Instead of construing law as an instrument of social forces, or as an expression of processes by which society maintains and reproduces itself, a new mode of anthropological enquiry focuses sharply on ‘law itself’, on what Annelise Riles calls the ‘technicalities’ of law. How might the legal scholar be inspired by this approach? In this article, I explore (...) one possible way of approaching law after anthropology, which is to find within law’s own archive a set of resources for an analogous representation of law itself. Drawing on the historical scholarship of Yan Thomas, I suggest that the Roman conception of law as object offers an engaging counterpart to the anthropological take on law as a specific set of tools or, technicalities, or as a particular art of making relations. (shrink)

The article asks how valid arguments can be identified in legal reasoning if one assumes neither that an answer to this question can be found within the law itself nor that one is required to adopt a purely historical perspective. By combining discourse theory with Wittgenstein’s thoughts, a relativistic approach to discourse is developed. According to this, a general discourse on the legal means of argumentation is to be conducted, in which different positions emerge with regard to respective world pictures. (...) All of these can claim the normative correctness of their results with equal force, even if this must always remain only a temporary state. (shrink)

In this paper, I critically challenge the ability of legal reforms to recognize and integrate the way in which a rape victim sees rape. Current limitations to the law are mainly due to the accepted patriarchal view on law as a form of objective and rational knowledge, outside which there are only impracticable and irrational views. I investigate the case of marriage jurisprudence in the UK, as a prominent example, because it has long accepted marital rape as objectively and (...) rationally part of a wife’s duty. Even though changes have occurred which improve the marital rape jurisdiction and prejudicial disbelief concerning a woman’s private life is still used in the courts to question the credibility of the victim. Over the past year, extensive efforts have been made to reform the management of rape cases. Whilst there is a need to acknowledge the seriousness of the accusation with rigorous legal principles which provide appropriate safeguards for the accused person as well as the complainant, especially bearing in mind the often “private” circumstances, with a concomitant lack of witnesses, it remains the case that the rate of attribution in attempts to secure successful prosecutions in rape case remains overwhelming. I show how a Wittgensteinian approach to law would take into consideration the shape of gendered lives as they are experienced, and hence would not accept just one legal interpretation of marital law. The phenomenon of “seeing-as” in Wittgenstein’s philosophy can support the experience of being jolted into appreciating the feminist aspect of consent in marital sexual relationships. (shrink)

How is it possible to acknowledge and confront patriarchal violence within Muslim migrant communities without descending into cultural deficit explanations (they are overly patriarchal and inherently uncivilised) and without inviting extraordinary measures of stigmatisation, surveillance and control so increased after the events of September 11, 2001? In this paper, I explore this question by examining Norway's responses to the issue of forced marriages. I argue that social and political responses to violence against women in Muslim communities have been primarily (...) culturalist. That is, the violence is understood as originating entirely in culture, an approach that obscures the multiple factors that give rise to and sustain the violence. The culturalist approach enables the stigmatising and surveillance of Muslim communities. I approach this argument in two parts. In part one I discuss two important and influential books written by women who identify their concerns as feminist and who lay out the case for considering the problem of forced marriage as a problem of controlling fundamentally unassimilable and culturally inferior Muslims. I explore these works as paradigmatic of the culturalising or culturalist move. In part two, I review a variety of legal initiatives in Norway, first contextualising them as part of a larger European venture to control Muslim populations and then examining what they share conceptually with the approaches in part one. I end with how we might begin to develop an anti-racist response to the problem of violence against women. (shrink)

On 3 June 2008 the National Family Policy Concept was adopted by Seimas that states the goals and principles of the state family policy and several times refers to historical and scientific experience. The present article aims to reveal the historical and legal experience of the ancient Rome that laid foundations of contemporary private law and to compare the goals of the National Family Policy Concept and the state policy of the ancient Rome regarding family issues. The concept of family (...) framed by the National Family Policy Concept is based on matrimony. This is why the authors of the article focus on Roman matrimony. Having discussed the ancient Roman concept of marriage and Roman state policy regarding issues of matrimony and family and comparing it with the aims of the National Family Policy concept it might be stated that policy of encouraging family and promoting family relations based on matrimony that is provided by the Lithuanian state is not a new invention but may also refer to legal resolutions of the ancient Rome. (shrink)

Sexual and reproductive health is a challenge worldwide, and much progress is needed to reach the relevant UN Sustainable Development Goals. This paper presents cross-sectional data collected in Sierra Leone on sexual and gender-based violence, family planning, child, early and forced marriage, and female genital mutilation using an innovative method of measurement: situational judgment tests, as a subset of questions within a larger survey tool. For the SJTs, respondents saw hypothetical scenarios on these themes and had to indicate (...) how they would react. The objective is to give an impression of beliefs and norms on specific behaviors, which provide insights for social and behavior change interventions. Data was collected by enumerators traveling to villages randomly selected in six districts of the country. The sample is composed of 566 respondents. Results show that FGM in particular seem to be a priority topic, in comparison to the other topics for which the norms seem to be stronger against those practices. Age differences emerged and suggest priority groups to be targeted. In terms of validity of the measurement methods, situational judgment test answers correlated positively with other items in the survey, but the magnitude of the association is often small, and sometimes not significant. Thus, more studies are needed to further explore the validity of this measure by comparing against a reference value. Using SJTs could complement other data collection tools to perform community assessment, and orient the direction of the program in its planning phase. (shrink)

New York defines rape as forced penile vaginal penetration, which means only women can be rape victims. Given this definition, rape should always be considered a type of hate crime and thus eligible for sentencing enhancement because the perpetrators target victims based on their group membership. Such a narrow definition of rape is problematic because it fails to acknowledge oral and anal rape and overlooks the fact that men can also be raped. I argue that regardless of the type (...) of sexual assault that occurs, rape should be considered a hate crime when the rapist chooses the victim based on gender, gender identity, and/or sexual orientation and the rape reinforces the patriarchal and heteronormative hegemony. (shrink)

The recent article by R. P. Saller on Roman dowry in the Principate makes some interesting and important suggestions about the function of dowry and its role in the devolution of property. I am in broad agreement with a good deal of what he says, and would not dispute his views that dowry was, as shown by the requirement of collatio dotis, regarded as in a sense part of a woman's patrimony, and that the rules for the recovery of (...) dowry show that the purpose of giving dowry was not held to rest on one single principle, but included provision both for the expenses of the wife's maintenance during marriage and for a possible remarriage after divorce or widowhood. However, his remarks on both points need some qualification and amplification. Briefly, I hope to show that the oddities and anomalies noticed by Saller in the rules governing the recovery of dowry at the end of a marriage are apparent rather than real, since these rules rest, not on conflicting views about the purpose of dowry, but on the fact that the husband had full legal ownership of the dowry during marriage, together with the right of the wife or her pater to an actio rei uxoriae for recovery of dowry; that the rules for collatio dotis applied only if the woman herself chose to claim a share in her father's estate on intestacy beyond the amount of her dowry; that the use of the dowry for the wife's support was an equitable, rather than a legal, requirement. (shrink)

A recent case in the Northern Territory of Australia has raised the issues of intra-racial rape and the legal recognition of traditional marriages between Indigenous people. The defendant in the Jamilmira case was charged with statutory rape of a 15-year-old girl. He argued that the girl’s status as his promised wife should lead to mitigation of his sentence. Members of the Northern Territory judiciary and others in the community were divided in their response to his claim. Ultimately the case led (...) to reform of the law in relation to the recognition of traditional marriage, a response which outraged some members of the Indigenous community. In this article I examine the various representations of culture and individuals that were utilised by ‘the law’ and how these representations informed the legal response. In the process I question the limits of my own role as a ‘white middle-class feminist’ in the context of explorations of law and culture. Is there a space to become involved in these debates without being complicit in fostering racism and prejudice and without reverting to stereotypes and cultural arrogance? (shrink)

In this paper I examine the presence of rape myths and gender stereotypes, and the norms of sexuality they reflect and reinforce, in Croatian rape laws, as exemplified by the recent practice of the Zagreb County Court. I begin with a general discussion of the gendered myths and stereotypes that have shaped the content and application of the criminal law of rape everywhere. I then briefly introduce the definition of rape under the 1997 Croatian Criminal Code which was in force (...) at the time of my research, after which I proceed to the critical analysis and the assessment of the Zagreb County Court practice. Next, I turn to the changes in the new Criminal Code to see how they address the identified problems. I offer a model of an affirmative consent standard, based on a communicative model of sexuality, which values reciprocal responsibility, communication and mutuality of sexual desire. I argue that this standard has greater potential to challenge rape myths and gender stereotypes and to promote sexual freedom and gender equality. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Prostitutes and Courtesans in the Ancient WorldMadeleine M. HenryChristopher A. Faraone and Laura K. McClure, eds. Prostitutes and Courtesans in the Ancient World. Wisconsin Studies in Classics. Madison: University of Wisconsin Press, 2006. x + 360 pp. Cloth, $65; paper, 24.95.This collection stems from a conference at the University of Wisconsin, Madison in April 2002. McClure's introduction situates the essays historically from nineteenth-century assemblages of textual references to (...) sexual practice to the present, when attention to prostitution has grown out of interest in women's history, the history of sexuality, and cultural studies. She notes important modern approaches and the vexed question of terminology and its relationship to behavior. As McClure states, "while prostitutes in the ancient world may have been socially marginal, they were symbolically and even socially central" (6). Most of the essays, organized into three categories, concentrate on written evidence; some may wish that illustrations had been included.Section A: "Prostitution and the Sacred"In "Marriage, Divorce, and the Prostitute in Ancient Mesopotamia," Martha Roth concentrates on the impact, especially on marriage, of unmarried women (harı\mtu in Babylono-Assyrian, kar.kid in Sumerian) who had sexual relations with men. She concludes that the documents assign responsibility to the unmarried woman who has sexual relations with a man and that the law codes attempted to prevent or minimize the economic repercussions of such unions on inheritance. Roth finds no evidence of "ritualized or institutionalized sexual intercourse" (23) in Old Babylonian evidence (nineteenth to seventeenth centuries B.C.E.).In "Prostitution in the Social World and Religious Rhetoric of Ancient Israel," Phyllis Bird mainly provides interpretations of references in the Hebrew Bible to prostitution (e.g., the quest for "oriental sacred prostitution") and surveys elite, male religious biases. The prostitute "type" of the Hebrew Bible resembles that of surrounding cultures (41). Bird disentangles the considerable metaphorical uses of prostitutional language from other more literal references in order to concentrate on the differences between one called a prostitute proper (zonah, one who engages in extramarital sexual relations) versus one called qedes=ah ("consecrated woman"). The verb zanah referred to all extramarital sexual relations except adultery, and Bird dissects the problems involved when no one English word can be used to cover the range of meanings that the Hebrew root ZNH carries: raped women are defined by the same word, as are women who lure men [End Page 419] into adultery. In each instance, "an unmarried woman is involved in a sexual act" (45). The city can be personified as a prostitute or bride, and prostitutes symbolize dishonor in narrative texts. ZNH and its derivatives describe illicit political activity and describe Israel herself as a fornicating woman. Bird finds no evidence that prostitution was illegal in ancient Israel; the abundant references to and metaphorical uses of terms derived from ZNH suggest strongly that prostitutes were a feature of life, without establishing that females might engage in prostitution in order to pay religious fines. Bird notes briefly that male prostitution in ancient Israel was homosexual and had its own terminology (49).In "Heavenly Bodies: Monuments to Prostitutes in Greek Sanctuaries," Catherine Keesling examines literary references to votive monuments erected by or commemorating female prostitutes in Greek sanctuaries in the archaic and classical periods. She concentrates on the degree to which Rhodopis' and Phryne's famous monuments were liminal or transgressive, but she incorporates findings about other votives. Keesling observes that Rhodopis' votive stands midway between those that Snodgrass terms "raw" (everyday objects, e.g., weapons) and "converted" (e.g., statues): Rhodopis dedicated a tithe of ox-spits ("raw") but constructed the offering so that the spits could not be removed (thus becoming "converted"). Keesling also discusses the monument, known only from literary sources, supposedly dedicated to Leaina, who was loyal to the tyrannicides. This tongueless statue, if originally dedicated to her, is the only canting-device animal statue found in a sanctuary (64–65). Phryne's portrait statue in the sanctuary of Apollo at Delphi is also singular as the only portrait before the Roman period that was not part of a family group, as one of three pre-Hellenistic gilded bronze portraits, and... (shrink)

Originally published in 1529, the Declamation on the Preeminence and Nobility of the Female Sex argues that women are more than equal to men in all things that really matter, including the public spheres from which they had long been excluded. Rather than directly refuting prevailing wisdom, Agrippa uses women's superiority as a rhetorical device and overturns the misogynistic interpretations of the female body in Greek medicine, in the Bible, in Roman and canon law, in theology and moral philosophy, (...) and in politics. He raised the question of why women were excluded and provided answers based not on sex but on social conditioning, education, and the prejudices of their more powerful oppressors. His declamation, disseminated through the printing press, illustrated the power of that new medium, soon to be used to generate a larger reformation of religion. (shrink)

Sometimes persons are legally responsible for reckless behavior that causes criminal harm. This is the case under the newly drafted provisions of the U.S. Model Penal Code (MPC), which holds persons responsible for “simple” rape (nonconsensual sex without proof of force or threats of force), where the offender recklessly disregards the risk that the victim does not consent. In this paper we offer an explanation and corrective critique of the handling of reckless rape cases, with a focus on the U.S. (...) criminal justice system, although our analysis is applicable more broadly. We argue that a wider group of reckless rapists are criminally responsible than is captured by the MPC and claim criminal punishment of reckless rapists must be justified by looking to both moral desert and instrumental aims achieved by criminal punishment. Part of the law’s job is to communicate and enforce society’s expectations regarding unacceptable behavior. In punishing reckless rape, we are not just giving people what they deserve, but also reinforcing and shaping norms regarding sexual behavior. (shrink)

In India, Dalits faced a centuries-old caste-based discrimination and nowadays indigenous people too are getting a threat from so called developed society. We can define these crimes with the term ‘atrocity’ means an extremely wicked or cruel act, typically one involving physical violence or injury. Caste-related violence has occurred and occurs in India in various forms. Though the Constitution of India has laid down certain safeguards to ensure welfare, protection and development, there is gross violation of their rights such as (...) killing, murder, torture, burning, abduction, rape and molestation. According to a report by Human Rights Watch, “Dalits and indigenous peoples (known as Scheduled Tribes or adivasis) continue to face discrimination, exclusion, and acts of communal violence. Laws and policies adopted by the Indian government provide a strong basis for protection, but are not being faithfully implemented by local authorities.” Human rights issues are very often understood and analyzed from socio-political and cultural perspectives. Apart from such perspectives, the issue of human rights also can be analyzed from a strictly philosophical perspective, which implies that the idea of human rights is centered on the inspiration of human dignity. Several studies on the situation of human rights of Dalits in several parts of India show more reports on violation of human rights than on protection of them. Dalits are discriminated against, denied access to land, forced to work in degrading condition, and routinely abused at the hands of the police and higher-caste groups that enjoy state protection. For example, Dalit women are regularly subjected to sexual violence as a result of their lower caste status-often in response to their demands of basic rights. Hate crimes towards indigenous peoples is a daily reality in many countries across the globe. The challenge is to change such a dehumanized situation. The challenge is to each one of us that whether engaged in governance of the civil society or voluntarily engaged in social and economic development of society, one thing to remember is that leaving behind the vulnerable units of our society – Dalits and indigenous peoples – will not take us to a prosperous society. This paper is an attempt to study the situation of human rights of two most neglected segments of society namely, Dalits and STs as a serious international human rights issue. (shrink)

In Documentalità, Maurizio Ferraris presents marriage as a paradigmatic instance of a social object whose essence is constituted by the generation of documents. This claim appears to hold good for some of the standard forms of matrimony recognised within the Roman Law tradition. The case is put for saying that, nevertheless, the appeal to documents puts the cart before the horse: the validity of a marriage depends, if anything, on the behaviour of the participants in it as (...) much before as after any supposed document-generating ceremony. (shrink)

In Athens and other ancient cultures, a woman, whatever her status and whatever her age or social class, was, in law, a perpetual minor. Throughout her life, she was in the legal control of a guardian who represented her in law. Rape, as unlawful carnal knowledge of a woman, warranted a capital charge in the Graeco-Roman world. It still carries a capital charge in some societies and is considered a felony in others. As for adultery, it may be prosecuted (...) in some cultures while in others it is a matter to be decided by the family council. This paper examines laws concerning the abuse of and exploitation of women in ancient and modern societies, especially within the context of their biologically determined roles and sexual culture. It also seeks to establish the socio-legal rights of women, especially those who were traumatised and sexually abused. The research method is mainly content analysis. It employs sources such as legal evidence in the form of recorded speeches of the Attic orators along with literary accounts, historical or legendary and epigraphic inscriptions. (shrink)

This paper addresses the question of whether rape-law reform should treat all cases of simple rape—nonconsensual sex that does not involve the use or credible threat of physical force—as a serious crime. Of primary concern here are those sexual interactions, often referred to as “date rape” or “acquaintance rape,” where the coercive element is not physical force as evidenced by reasonable resistance. Should, as some feminist reformers have urged, felony rape include sexual interactions that may not be fully consensual but (...) do not include the use of physical force? If so, can convincing answers be provided for due process questions about what constitutes valid consent to sex and how to tell when it is present. This paper warns of the difficulties in determining what counts as evidence of nonconsent and mens rea in light of the “linkage thesis” which takes valid consent in these cases to be bilateral and interactive, and to imply the absence of mens rea. Given the complexity of norms governing these sexual interactions and the high likelihood of reasonable mistakes about consent, this paper contends that criminalizing these cases of simple rape will often result in the unjust treatment of the relevant parties. (shrink)

The issue of acquaintance rape has been gaining increased prominence in recent years. In this book Joan McGregor analyses the ethical and legal problems that arise in connection with acquaintance rape cases. She discusses with great clarity and precision the complexities involved in notions such as consent, force, autonomy, power, intention and the impairment of responsibility through drugs, alcohol and mental illness. Arguing that criminal rape laws are too narrow, capturing only cases where there is clearly recognized physical violence and (...) resistance from the victim, she sets out a new proposal for how the criminal law should deal with cases of nonconsensual sex which captures the ideals of a liberal political society and in particular the idea of equality. This book explains fully what it means when a woman says no and means no. (shrink)

Many of Menander's comedies are structured according to a rape plot pattern in which a young Athenian citizen usually rapes and impregnates a female citizen prior to the opening of the play. In most cases, the rape leads to a happy ending: the marriage of the rapist and victim. This casual treatment of rape is striking because in all other respects Menander's plays are not only scrupulously faithful to Athenian law, they also use Athenian legal and social norms as (...) their own generic conventions. Although the rape of a female citizen was a serious oense in Athenian law, potentially punishable with death, and a flagrant violation of the norms of Athenian citizenship, Menandrian comedy never morally or legally problematizes rape. This study considers how the comedies neutralize the potential legal signicance of rape and what this tells us about Athenian law and the ideology of democratic citizenship. It argues that by portraying a neutral form of rape, Menander's comedies implicitly articulate those factors which had the potential to bring "rape" within the purview of Athenian legal discourse. Menandrian Comedy's strategic fidelity to the norms of Athenian citizenship also tells us something about the gender ideology of Athenian democratic citizenship, that is, the ways in which relations between the sexes support and sustain civic relations between men in Athenian political culture and democratic ideology. While Menander's romantic plots uphold the laws of citizen marriage, they do not passively enact the legal constructs. In one common variant of the rape plot, the gendered construction of citizenship embedded in Athenian law is specically conjoined to democratic norms. In this type of play, a wealthy young citizen rapes and eventually marries the daughter of a seemingly poor citizen. By using rape to generate matrimonial unions between the rich and the poor, these plays extend democratic norms into the social arena. The formation of marriages across class lines disrupts the eects of intergenerationality in reproducing social and economic inequalities. (shrink)

Paradox and origin : on the structure of legal communication -- History, law and hermeneutic self-reference -- Self-mastery and the conversion of force : an ethics of freedom -- The social metaphysics of law : Vico's communicative body and the paradoxical grounding of freedom and authority -- The creative formation and foundation of society's law : on the nature of poetic wisdom -- Between freedom and authority : Vico's history of roman law -- The technique of command : on (...) the problem of freedom in Weber's sociology of law. (shrink)

From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two (...) non-debates: the apparent conflict created when speakers use “consent” to mean two different things and the question of whether rape law ought to be formulated in terms of consent or force. From here, we turn to the conceptual apparatuses that surround the normative questions of freedom from force, knowledge, and capacity. Here, we suggest how better understanding these concepts can frame the underlying discussions as to what sorts of coercion undermine consent, what kinds of deception invalidate consent, and when the victim is too incapacitated to consent. Finally, we turn to different formulations of consent, demonstrating that one conception better captures the harm of rape but that other formulations may better protect victims. We show how clarifying these questions allows discussants to see why different formulations are valuable and to debate the best all-things-considered formulation. Although this article is framed as a question of how to think like lawyers about rape, its ambition is to set forth a framework that is useful to reformers as well. (shrink)

This note analyses a recent case of the European Court of Justice in which the applicant, a 14-year old rape victim, alleged that Bulgarian criminal law violated her rights under Articles 3 and 8 of the European Convention of Human Rights in pursuing a practice of only prosecuting rape where there was evidence of the use of physical force and active resistance. In upholding the applicant’s claims, the Court re-affirmed the positive obligation on states to adopt measures to ensure that (...) fundamental rights under the Convention were secured. In particular, in the case of rape, this required the enactment and application of criminal laws effectively prescribing all acts of non-consensual sex and not just those involving physical violence. In this way the Court affirmed not only that rape was, in essence, a violation of personal sexual autonomy but also that legal systems which failed adequately to protect against all forms of rape risked operating in breach of Convention obligations. (shrink)

Rape myth acceptance, perceived barriers, and self-efficacy were examined as predictors of likelihood to report different types of rape to law enforcement among 409 undergraduates. Participants had lower likelihood to report incapacitated compared to physically forced rape. Men had lower reporting likelihood than women for rape perpetrated by the same and opposite sex and were more likely to perceive several barriers. RMA and perceived barriers predicted a lower likelihood to report several types of rape. Among men, higher self-efficacy predicted (...) increased reporting likelihood. Targeting RMA and decreasing perceived barriers is imperative to increase college students’ likelihood to report rape to local and campus law enforcement. (shrink)

This book tells an overlooked story in the history of the will, a contested idea in both politics and philosophy of mind. For it is Cicero, statesman and philosopher, who gives shape to the notion of will as it would become in Western thought and who invents the idea of 'the will of the people'. In a single word – voluntas – he brings Roman law in contact with Greek ideas, chief among them Plato's claim that a rational elite (...) must rule. When the republic falls to Caesarism, Cicero turns his political argument inward: will is a force to win the virtue in the soul that was lost on the battlefield, the marker of inner freedom in an unfree age. Though his vision of a free republic failed in his time, Cicero's ideal of rational elitism has shaped and fractured the modern world – and Ciceronian creativity may yet save it. (shrink)

Feminists are divided on whether consent should be employed in legal definitions of rape. Catharine MacKinnon has criticized the usefulness of consent in enabling legal systems to recognize and prosecute instances of rape (MacKinnon 1989, 2005, 2016). In a recent article in this journal, Lisa H. Schwartzman defends the use of affirmative consent in rape law against MacKinnon’s critique (Schwartzman 2019). In contrast to MacKinnon, Schwartzman claims our understanding of rape must include both force and consent components. In this paper, (...) I will argue in agreement with Schwartzman and against MacKinnon that the legal definition of rape should include an affirmative consent component. I will take Schwartzman’s discussion as my point of departure and consider whether she has responded adequately to MacKinnon’s criticisms of consent. I will argue that her responses are not fully adequate. In particular, she has not successfully rebutted the argument that an appeal to consent is unnecessary once we have accepted an expanded definition of coercion. I will then provide a more affirmative defense of affirmative consent in response to MacKinnon’s most challenging criticism. (shrink)

Under current UK legislation, only a man can commit rape. This paper argues that this is an unjustified double standard that reinforces problematic gendered stereotypes about male and female sexuality. I first reject three potential justifications for making penile penetration a condition of rape: it is physically impossible for a woman to rape a man; it is a more serious offence to forcibly penetrate someone than to force them to penetrate you; rape is a gendered crime. I argue that, as (...) these justifications fail, a woman having sex with a man without his consent ought to be considered rape. I then explain some further reasons that this matters. I argue that, not only is it unjust, it is also both a cause and a consequence of harmful stereotypes and prejudices about male and female sexuality: men are ‘always up for sex’; women’s sexual purity is more important than men’s; sex is something men do to women. Therefore, I suggest that, if rape law were made gender neutral, these stereotypes would be undermined and this might make some difference to the problematic ways that sexual relations are sometimes viewed between men and women more generally. (shrink)

This chapter addresses force protection and the degree to which necessity permits attacking forces to prioritize the lives of their own soldiers over the lives of enemy civilians. This is a difficult problem of application; although everyone agrees that the lives of enemy civilians must be safeguarded, the question is how much must be risked in order to safeguard them. The chapter discusses the case of the Israeli Defense Forces, in which great emphasis is placed on preventing the abduction of (...) Israeli troops and on facilitating their rescue, even at the cost of other lives. This chapter concludes by articulating a standard of reasonable force protection that is neither too restrictive nor too permissive. (shrink)

The concept of marriage has undergone a transition presently when compared with the past. Norms, customs and traditions have also changed. Attitudes, choices and preferences of individuals contribute to these changes accompanied by education and modernization. Equality of women, social changes, and liberalized economy can be a few determinants contributing to the choices and preferences, yet fertility issues remain a nagging problem after marriage. The present trend highlights late marriages, and stress at home and works front for both (...) genders, contributing to instability in marriages. These being certain issues, on one hand, increase in divorce cases, maintenance and custody of children, single parenting is another set of challenges, on the other hand. Hence, marriages are also riskier and those who embark on this journey are the successful lot. This paper primarily aims to identify the perception of youth about marriage as terminologies such as “Live in relationships”, “Friends with benefits”, etc., are in vogue. Secondly, the objective of this paper is also to study if “mid-life crisis” in both the genders accompanied by emotional, physical and psychological issues can be the causal determinants for various issues in marriage. Thirdly, the paper aims to study the causal effects between marriage issues, family laws and the country’s economy as there is a direct nexus between the three forces using appropriate research methodology tools and techniques. (shrink)

Introduction -- John T. PARRY: Pain, Interrogation, and the Body: State Violence and the Law of Torture -- Fernando PURCELL: "Too Many Foreigners for My Taste": Law, Race and Ethnicity in California, 1848-1852 -- Shani D'CRUZE: Protection, Harm and Social Evil: The Age of Consent, c. 1885-c. 1940 -- Ruth A. MILLER: Sin, Scandal, and Disaster: Politics and Crime in Contemporary Turkey -- İştar GÖZAYD1N: Adding Injury To Injury: The Case of Rape and Prostitution in Turkey -- Dani FILC and (...) Hadas ZIV: Exception as the Norm and the Fiction of Sovereignty: The Lack of the Right to Health Care in the Occupied Territories -- Alban BURKE: Mental Health Care During Apartheid in South Africa: An Illustration of How "Science" Can be Abused -- Rui ZHU: Schistosomiasis and Capital Marxism -- Elena A. BAYLIS: The Inevitable Impunity of Suicide Terrorists -- Douglas J. SYLVESTER: The Lessons of Nuremberg and the Trial of Saddam Hussein -- Kirsten AINLEY: Responsibility for Atrocity: Individual Criminal Agency and the International Criminal Court -- Roberto BUONAMANO: Humanity and Inhumanity: State Power and the Force of Law in the Prescription of Juridical Norms -- Vincent LUIZZI: New Balance, Evil, and the Scales of Justice -- Jody LYNEÉ MADEIRA: The Execution as Sacrifice -- Bram IEVEN: Legitimacy and Violence: On the Relation between Law and Justice According to Rawls and Derrida -- Notes on Contributors. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:“Till Death Do Us Part”? Buddhist Insights on Christian MarriageWioleta PolinskaHigh divorce rates and declining marriage rates in Western societies draw the attention of many scholars to the fragility of contemporary marriages.1 Rampant individualism, permissive divorce law, and softening stance on divorce by mainstream Christian denominations are all listed as culprits responsible for the current marriage crisis.2 These conventional accounts, however, overlook important insights gathered by historians (...) of marriage, insights that point to a dramatic shift in the concept of marriage that occurred more than two hundred years ago. According to Stephanie Coontz, “the invention of the historically unprecedented idea that marriage should be based on love and mutual affection” 3 is responsible for greater fragility, but also for creating good, satisfying marriages that bring much happiness to people’s lives.4 Thus, the very source of fragility (the search for love and mutual affection) is also a source of deep connections and lasting relationships. While the fragility accompanying contemporary marriage is here to stay, our efforts to build strong unions need to be carefully evaluated. In what follows, I will address Christian and Buddhist approaches that aim at protecting the stability of marriage. To strengthen marriage, Christianity, from early on, focused on the permanence of marriage whether understood as a sacrament or, later on, as a covenant. Christian wedding vows that promise love, care, and enduring partnership “till death do us part” capture well the prevailing theology of Christian marriage. In contrast, Buddhism employs a concept of impermanence that implies an ever-changing reality that warrants no finality. Recent studies in psychology of mindfulness meditation show that such Buddhist concepts can translate well into effective skills for those in loving relationships. I will suggest that Christian theology might become more successful at preserving the stability of marriage by becoming less focused on the finality of couples’ bonds, and instead attending to the present reality of couples’ relationships.It is well documented that before the seventeenth century marriages were arranged by parents and fulfilled primarily political, economic, and social functions rather than individual needs. Marriage was seen as a means of enlarging one’s economic enterprise, acquiring powerful in-laws, strengthening military alliances, or (for the less [End Page 29] privileged) enlarging the family’s labor force.5 This is not to say that the notion of romantic love was unknown until the seventeenth century, but that it was not closely associated with marriage.6 In aristocratic courts of southern France, for example, romantic love appeared between an unmarried man and a married woman, and it should have been either unconsummated or adulterous.7 As late as the eighteenth century, a “sudden falling head over heels in love, although a familiar enough psychological phenomenon, was thought of as, a mild form of insanity” and an unreasonable basis for marriage.8 Romantic love became widely accepted only in the nineteenth century under the influence of Enlightenment thought, ideals of the French and American Revolutions and of the romantic movement.9Romantic love as an expression of an individual’s desire for fulfillment has its dark side, as it can unleash selfish concerns. Thus, Robert A. Johnson, a Christian theologian, defines romantic love as “airy, fantasy, projections, and an evanescent high. It is fundamentally egotistical—fixated on its own wants and whims. It can never lay the foundation for personal commitments.” 10 The Vietnamese Buddhist monk Thích Nhất Hạnh (b. 1926) states that love can become a kind of sickness when it forms an attachment, similar to drug dependency. When we are under its spell, we are preoccupied with the object of our love and we desire to control and possess the other. To Ven. Hạnh, this is not true love since “it is only the willingness to make use of the other person in order to satisfy our own needs.” 11 Both Johnson and Ven. Hạnh while criticizing romanticized concepts of love are not giving up on possibility of intimate love. Johnson calls this intimate connection with another person a “human love,” a love that affirms and appreciates another person as she or he actually is, in their totality. Instead of prizing... (shrink)

Is there an obligation by nations, who do not themselves recognize same-sex marriage to recognize such marriages when they have been consummated abroad? Is the right to such recognition a human right? If so, what obligations do the domestic courts of various countries have to incorporate the right to same-sex marriage for their own people? Must international law recognize a right to same-sex marriage as a human right, especially if some nations have already begun to move on (...) that track? These questions are moving to center stage as more and more countries in the EU and elsewhere are being forced to address various rights claims especially by lesbian, gay, bisexual and transgendered communities. At their core, these questions are troublesome not so much because of the communities they affect, but because they draw attention to a deeper set of problems concerning the relationship of domestic to international human rights law. What are the similarities and differences between these two areas of law, is there a hierarchy where one area dominates the other, do international human rights norms arise out of various domestic constitutional provisions, and what are the duties of courts (especially domestic courts) in declaring the law? Can local traditions, religious beliefs, or constitutional requirements justifiably stand in the way of extraterritorial recognition of international human rights law? (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, rather than (...) simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Instinct of Nature: Natural Law, Synderesis, and the Moral SenseRobert A. Greene“Instinct is a great matter.”—Sir John FalstaffThis essay traces the evolution of the meaning of the expression instinctus naturae in the discussion of the natural law from Justinian’s Digest through its association with synderesis to Francis Hutcheson’s theory of the moral sense. The introduction of instinctus naturae into Ulpian’s definition of the natural law by Isidore of Seville (...) in the seventh century posed a problem of definition for medieval commentators. Some said that it meant a universal and providential natura naturans; some defined it as the urge to self and species preservation in animals, degenerating in man into sensual and shameful impulses; some advanced the humanistic and paradoxical notion that it referred to a unique exercise of human reason in coming to know the natural law. The contemporaneous revival in the twelfth century of St. Jerome’s puzzling new term “synderesis,” and its gradual definition as the immediate apprehension of the first practical moral principles of the natural law, brought the two terms into proximity and loose association.A half-century later St. Bonaventure made explicit what had remained latent in the thinking of Thomas Aquinas by relocating synderesis in the affective rather than the intellectual part of man’s nature. Accordingly the moral discoveries of synderesis came to be spoken of as not only non-discursive but instinctive in nature—apprehensions for which no reason could be given, apprehensions somehow rooted in affective human experience. During the bilingual early modern period an increasingly secularized, internalized, and reified instinctus [End Page 173] naturae, together with its abbreviated vernacular cognate, “instinct,” came to serve as a substitute and synonym for the obsolescent synderesis. Edward Herbert’s attention to instinctus naturae in his De Veritate (1624), Sir Matthew Hale’s speculations about the place of rational instinct in the natural law, and Francis Hutcheson’s theory of a moral sense all exemplify this semantic legacy.The first entry in Justinian’s Digest has had a disproportionate influence on later speculation about the natural law. It begins a chapter that gives pride of place to general definitions of justice, law, jus naturale and jus gentium, and it is drawn from the writings of the Roman jurisconsult Domitius Ulpianus (d. 223), whose work constitutes forty percent of the Digest. Ulpian defines the natural law, with insistent repetition, as that which nature has taught to, or is common to, all animals:Jus naturale is that which nature has taught to all animals; for it is not a law specific to mankind but is common to all animals—land animals, sea animals, and the birds as well. Out of this comes the union of man and woman [male and female] which we call marriage, and the procreation of children, and their rearing. So we can see that the other animals, wild beasts included, are rightly understood to be acquainted with this law. Jus gentium, the law of the nations, is that which all human peoples observe. That it is not coextensive with natural law can be grasped easily, since this latter is common to all animals whereas jus gentium is common only to human beings among themselves. 1Justinian’s compilers gave Ulpian’s definition striking prominence at the beginning of the Digest and then in the same short chapter quoted the incompatible and more traditional definitions of his contemporaries Gaius and Paulus. They confined the operation of the natural law to mankind and spoke of reason as its source. 2 The compilers had been charged to eliminate just such conflicts; yet here at the very outset they set a conundrum that perplexed commentators [End Page 174] and invited explanation from Isidore of Seville to Hugo Grotius. Their selection of quotations suggests that as lawyers they regarded such general definitions as “for legal purposes no more than ornament to discussion.” 3 For those of a more speculative bent, however, the dilemmas could not have been more fundamental. How was the natural law to be defined in relation to those appetitive and self-preservative urges that man seemed to share with animals? Or did the term law apply only... (shrink)

This article explores the relationship between Roman school texts and the socialization of the student into an elite man. I argue that composition and declamation communicated social values; in fact, the rhetorical education of the late republic and the empire was a process of socialization that produced a definite subjectivity in its elite participants. I treat two genres of Roman school texts: the expansions on a set theme known as declamation and the bilingual, Greek and Latin, writing exercises (...) known as the colloquia amid the collections of hermeneumata. This article is more broadly concerned with the attitudes toward language use that are learned along with specific literacy skills. Habits of reading and writing and speaking are learned in scenes and contexts that contribute to concepts of the self and more widely of gender and social roles. The encounters and verbal interactions recurrently plot a deviation from violence or a return to civil and familial order through the proper verbal display of the elite speaker. The student speaker's assumption of roles, his training in fictio personae, is a strong training in memory and imagination-pretending to be someone else, pretending to talk like someone else, or pretending to talk on behalf of someone else. That someone else is most important as the schoolboy becomes the voice of or for prostitutes, the raped, slaves, freedmen, women. His was not a neutral ventriloquism in the styles of Latin but a training in the master's mode toward the ready conviction that the speaker can and must speak for others, his subordinates. Roman rhetorical education was a process of persona building, shaping the schoolboy in his future role while excluding others from the very right to become speaking subjects. (shrink)