Bryn Mawr Classical Review 1999.09.22
Thomas A.J. McGinn, Prostitution, Sexuality, and the Law in Ancient Rome. New York: Oxford University Press, 1998. Pp. xvi, 416. ISBN 0-19-508785-2.
Reviewed by Brent D. Shaw, University of Pennsylvania (email@example.com)
Word count: 2708 words
In undertaking this exploration of the legal face of prostitution in Roman society, Thomas McGinn has had the courage to enter one of the more disputatious areas of recent historiography, ancient or modern. Given the nature of the subject, the historian is faced with interlacing problems of method, historical and social theory, disputes over gender as a category of analysis, intense current political interests and the tortuous difficulties of the evidence itself. And, if the problems of understanding the relationship of formal law to social practice were not enough, those of the social history of sex and labor are added in abundance. Finally, there is no deep tradition of historical analysis on which to depend or from which to elaborate. For being such a normal part of everyday life, it has taken historians a long time to begin serious inquiry into prostitutes and prostitution. The watershed was formed by what might conveniently be labeled the 'second-generation' of feminist historical work. This trail was blazed by some journal studies of outstanding quality in the mid-1970s, but most of the landmark monographs appeared for the first time in the decade of the 1980s.1 By the late 1990s, the bibliography, needless to say, has become immense, but there has not yet been a substantial breakthrough in a consistent, and coherent, historiography of the social practice.2 As one recent historical survey concludes, somewhat in exasperation, the basic categories of analysis have not yet been sorted out sufficiently to allow agreement on ground-level concepts of an historical inquiry. It is the evaluative categories themselves that are the principal matters of dispute: "Is prostitution a recognizable profession or a form of proletarian exploitation? Is prostitution the ultimate form of sexual enslavement or a profound rejection of male domination?... Do prostitutes embody a form of self-destruction or an expressed desire for an eroticized lifestyle?"3 Trapped in the restricted range between a moralizing approach that condemns prostitution as one of the quintessential types of gendered human exploitation on the one hand, and a rather different economic one that analyzes prostitution as a type of sex work -- just another type of hard manual labor, often badly paid (if at all), controlled, and exploited -- historians seem both uneasy and perplexed. For historians of Roman society, however, this "history" hardly yet exists, much less has it been conceived as a worthwhile program for historical research.4
In what is the first part of a projected double-barreled attack on the subject, McGinn has essayed a sometimes forbiddingly technical analysis of the legal face of prostitution.5 As with much work on the related field of the Roman family, the explicit codes of the law offer an obvious starting point; and with McGinn we are in good hands, since he is fully cognizant of the problems bedeviling the place of formal law in social relations and the use of legal evidence for historical analysis.6 In his engagement with the problems of prostitution, sexuality, and the law, McGinn considers, seriatim, the regulations defining infamous persons, the Lex Iulia et Papia (i.e. the Augustan marriage laws of 18 B.C. and A.D. 9, the Lex Iulia de maritandis ordinibus and the Lex Papia Poppaea, later merged in their treatment by imperial jurists); the Lex Iulia de adulteriis coercendis; the imposition of taxation on prostitutes; the legal caveat governing the sale of a female slave that forbade her subsequent use as prostitute by the buyer; and finally, a collection of juristic opinions that affected the status of women designated as prostitutes.7 As McGinn himself admits, however, the Augustan laws on marriage, procreation, and adultery that are the centerpiece of his study were already inextricably linked to the social values that pre-existed them. For that very reason, these laws were so involved in codifying existing status and values that they themselves were deeply implicated in already-existing social values placed on prostitutes. The result is that modern historians find themselves caught in a vicious heuristic circle out of which there is no clear exit.8
At the end of his detailed chapter of analysis of the Augustan law on the repression of adultery, McGinn notes that it was the novelty of the Augustan legislation that women were included in the public sphere of formal law in the legislation of certain sexual activities as criminal (p. 90). Their presence was there to define. It is most important never to lose sight of this basic proposition: that the legislation is rooted in the near-paranoiac fixation of the first princeps on the purity and coherence of the body of Roman citizens. His concern was with the clear definition of the status of citizens, the maintenance of their numbers, and the preservation of the "honesty" of their ranks. Insofar as Augustus' program involved an abiding concern with family, marriage and legitimate sexuality, it was always with these purposes uppermost in his mind that he legislated -- purposes that had little or nothing to do with the regulation of prostitutes as such. Indeed, the original Augustan statutes disappeared beneath a mountain of juristic commentary in the next centuries, most of which, it is important to remember, "did not directly concern pimps or prostitutes" (p. 105).9 In fact, the only thing that stands out about prostitutes in this legislation is a pervasive assumption that they were part of a social world with which the government had little direct interest. If they were citizens, these women suffered from the normal impediments of infamia, but otherwise they could marry, have children, buy and sell, make last wills and testaments, and have these actions of theirs affirmed by the law.
Although McGinn recognizes the nature of this (to us) odd function of the law in a premodern state like Rome, he seems never quite to resolve it in his own analysis. At times, he has recourse to functional explanations as, for example, in his understanding of why female prostitutes were the main concern of the legislation (p. 124), as if the drafters of the laws were moved by the regulation of the actual prostitutes, while at the same time he states that "at Rome, the point of the exercise was more ideological than sociological" (p. 129). The only "sociological" point of these laws, as McGinn himself repeatedly emphasizes (e.g., p. 84,115, 119, 129, 138, 140, 194, 208, 245) was the ideological concern of defining and protecting the status of upper-class or "more respectable" women and marriages from which a new generation of citizen would be produced. The penalties for infringements of these laws were never directed against the prostitutes as such, but rather to the free and propertied persons of some social consequence (p. 75). In what the laws positively encourage, they only state that women who were known prostitutes were not suitable marriage partners for decent men such as freeborn citizens, but rather only for freedmen or other "lower class" males.
The same interest and process can be noted in the smaller body of juristic interpretation of the Lex Iulia de Adulteriis Coercendis. Once again, the main concern of the law was to define the sexual status of Roman citizen women, and through them, the legitimacy of the family. To do so, it tried to define two different types of sexual pollution of citizen women: adulterium and stuprum. In effect, the worry amounted to a uniform one of illicit sex involving married or unmarried Roman citizen women. It is hardly surprising that the terms came to be used so indiscriminately that the jurists themselves complained that they had become virtually synonymous (p. 140, 175). One can therefore easily agree with the first of McGinn's claims that the Lex Iulia exploited prostitutes in two distinct ways -- namely "that they were despised and consigned to the bottom rungs of the sexual/social ladder, a malum exemplum for decent women to avoid" (p. 215). But it is difficult to accept his proposition that the law exploited them in another sense, namely of establishing them legally as a class of women who were to provide a sexual "safety valve" for the sexual proclivities of men, for which one can find little concern on the part of the law. Indeed, as McGinn himself demonstrates in the sixth chapter of his book on the subsequent elaboration and commentary on the law, as imperial jurists came closer and closer to having to deal with real-life prostitutes and pimps, they recoiled from having anything to do with the regulation of the actual acts, trade, or the contractual and material relations involved. Instead, they moved to redefine "prostitute" and "pimp" precisely in symbolic terms that would be of most use to the original purpose of the law: the protection of the social elites of Roman society. A prostitute was no longer a woman who fell under the definition of the law -- the woman "who made a profit openly by the use of her body" (qui quaeve palam corpore quaestum facit fecerit). Rather, she became any woman who "acted sexually like a prostitute was believed to behave": a woman who engaged in sexual acts indiscriminately and flagrantly, regardless of whether or not there was any money or other remuneration involved.
Much of the same observation applies to the author's detailed analysis of the crime of "pimping" or lenocinium. The main point of the law was not to define and regulate pimps. Rather, the law was used to announce the fact that just as any matron who engaged in illicit sexual activity was "like a prostitute" so her compliant husband was, in effect, just like a pimp. The matrona was defined negatively as a woman who did not act like a whore; the good husband was one who did not tolerate such behavior but held himself responsible for it (or was to be held liable by the state). When the Severan jurists did come closer to describing those real life conditions of prostitution (p. 136f), something closer to the actual behavior observed in other societies appears: prostitution is an occasional, sometimes sporadic, not always life-long occupation, engaged in by women who had other occupations as well (inn keepers, barmaids, hostelry women, and other such professional women: "ut solent," as Ulpian says). The entire text of McGinn's chapter devoted to the "pimp" (leno) and "pimping" (lenocinium) hardly uncovers a single example of the real thing. Instead, the reader encounters a cloying weight of juridical commentary on the legal branding of the knowingly cuckolded (citizen) husband, because it was his status, polluted by his wife, that was the point of the law. The reality was that a not inconsiderable number of the actual pimps were the self-same Roman patres who made the laws, who owned the slave women, who controlled the freedwomen, and who built the hotels and inns on their estates that pandered to the trade, and who profited from it.
This lack of concern on the part of the law with prostitutes themselves (a somewhat quixotic disregard in our eyes) is demonstrated by McGinn in detail in a chapter-length analysis of the legal encumbrance ("restrictive covenant") that a seller could add to the sale of his or her female slave which required that she could not be subsequently used as a prostitute (ne serva prostituatur). His demonstration is full and convincing, as are the conclusions that he derives from it: "Masters with a delicate sense of honor ... when they chose or were forced to sell their female slaves ... attempted to preserve their honor through the imposition of a ne serva covenant" (p. 316). The restrictive covenant did little to protect the exploitation of slave women as prostitutes. What it did do was to furnish a protective moral screen for the sensibilities of the masters, lest they themselves should appear to be little short of lenones. The only alternative recently offered to McGinn's interpretation of this "restrictive covenant" is one proposed by Amalia Sicari.10 On her reading of the legal texts, there was an increasing public concern with the life and moral well-being of slave women that can be traced through the imperial legislation of the second and third centuries. For Sicari, the repeated juristic and imperial interventions "sono il riflesso della tutela delle schiave dalla prostituzione e del valore attributo alla loro persona." This reviewer finds the "darker" reconstruction offered by McGinn to be more convincing. Nothing in the law ever required a vendor to add the ne prostituatur stipulation to a contract of sale for a female slave, and there is no supporting evidence in the whole history of female prostitution in the empire, which was integrally connected with the institution of slavery, to indicate that imperial authorities were motivated by a concern for a "tutela delle schiave dalla prostituzione." Indeed, general protection of female slaves from prostitution would have made the system, as we know it, unworkable.
In his admirably controlled and detailed analysis of the laws themselves, McGinn has provided an invaluable guide to what they do and do not say -- reliable readings that represent the best current analysis of the Augustan laws that attempted to govern the marriage and sexual mores of the Roman elite. In the light of McGinn's own detailed analysis of the evidence, however, it might well be argued that the Roman state had nothing reasonably describable as "a policy" towards prostitutes or prostitution. Indeed, the state and its legal apparatuses seemed not to care very much about the persons or the moral status of the commerce. As with the parallel field of the study of slavery, masses of potential comparative historical data produced in recent decades are therefore rendered all but useless for the modern-day Roman historian.11 Whereas the modern states of the eighteenth to twentieth centuries did assume a specific interest in controlling and regulating prostitutes, and they have been willing to use the medical, moral, legal, social-work, and policing apparatuses to this end, the practice of prostitution in Roman society seems to have exhibited rather the opposite of this social and moral position, as did the Roman state itself. The Roman government had two types of interest. The first was in defining and protecting the symbolic orders of "honest" persons that constituted the citizen body, extending from the ordinary "model" free citizen to persons of senatorial status. The other was a simple economic interest: prostitution as a potential source of tribute, of more tax revenues. But this is hardly properly describable as a "legal" interest in the same fashion as the Augustan legislation and juristic law studied by the author. It is therefore difficult to accept McGinn's claim that one of the purposes and conscious designs of the Augustan laws was to marginalize prostitutes and pimps. This is a complex objection to sustain, since an automatic result of laws defining "the good" is by default to delimit "the bad." The contrast, however, is precisely between the determination of the modern state to regulate and to define its "under classes" and the main concern the Roman state had with the condition of its social and political elite because it could assume that "others" did not count. The laws could therefore draw their strength from the already established marginality of prostitutes in order to use them as a sign.
Given the very few studies of actual working prostitutes that historians have produced, by contrast with the more abundant and convincing social work studies on this spectrum of sex work, it seems, indeed, that the law might be a rather bad guide to actual practice. In the end, therefore, the reader is likely to be persuaded by McGinn's conclusion that, more than anything else, the Roman law made a fundamental contribution to the construction of a moral ideology (p. 84). Perhaps the real story about Roman "sexuality" that his analysis reveals is that in its legal guise (and others) it was very much perceived, and acted upon, by the social elites as a matter of class. As historians, we are therefore still left some distance short even of the fictive imagination of Lizzie Borden's Working Girls, a cinematic exploration that plays with the dynamics and potentialities of moral "deviance" and space suggested by the marginality of sex work and, at the same time, drives home the sheer drudgery, boredom, and exhaustion of the daily labor involved.
1. The standard pioneering works began with Judith Walkowitz's Prostitution and Victorian Society: Women, Class, and the State (Cambridge, 1980); followed by works such as Jill Harsin, Policing Prostitution in Nineteenth Century Paris (Princeton, 1985); Leah L. Otis, Prostitution in Mediaeval Society: the History of an Urban Institution in Languedoc (Chicago, 1985); Jacques Rossiaud, Medieval Prostitution, trans. Lydia G. Cochrane (Oxford, 1988): Roussiaud's work first appeared in Italian in 1984 (Rome-Bari); the first chapter of this work was first published as a path-breaking article in the Annaliste house-journal: "Prostitution, jeunesse et société dans les villes du Sud-Est au XV siècle," Annales: ESC 31 (1976), 289-325; and English version of the latter appeared as "Prostitution, Sex, and Society in French Towns in the Fifteenth Century," chap. 7 (in) Philippe Ariès & André Béjin eds., Western Sexuality: Practice and Precept in Past and Present Times (Oxford, 1985), 76-94.
2. R. Villa, "La prostituzione come problema storiografico," Studi storici 2 (1981), 300-14; and Timothy J. Gilfoyle, "Prostitutes in History: from Parables of Pornography to Metaphors of Modernity," AHR 104 (1999), 117-41. who, at pp.117f. surveys some of the temporal development of the modern historiography.
3. Ibid., p.139.
4. Previous work has been almost solely of a rather odd antiquarian moralizing type, from the nineteenth-century Paul Lacroix (writing under the pseudonym of Pierre Dufour), Histoire de la prostitution chez tous les peuples du monde depuis l'antiquité la plus reculée jusqu'à nos jours (6 vols., Paris, 1851-3; 8 vols., Brussels, 1861, the latter edition was illustrated by "belles gravures sur acier, exécutées par les artistes les plus éminents"); and later, writing under the pseudonym of P.L. Jacob, Les courtisanes de l'ancienne Rome (Paris, 1884) (matching his earlier effort, Les courtisanes de la Grèce, d'après les auteurs grecs et latins (Nice, 1872) to A. Rossi's Donne prostituzione e immoralità nel mondo greco e romano, (Rome, 1979). The only antidote has been some encyclopedia entries on the realia: from Gerhard Delling's "Geschlechter," RAC 10 (1977), 780-800 to Werner Krenkel's, "Prostitution," (in) M. Grant & R. Kitzinger eds., Civilization of the Ancient Mediterranean: Greece & Rome, vol. 2, New York (1988), 1291-7. McGinn promises a more general book bearing the title Prostitution and Roman Society as forthcoming, which work, mercifullly, will finally take this subject into the area of serious scholarship. Between McGinn's doctoral dissertation (vide infra) and the publication of his book, there appeared Amalia Sicari's Prostituzione e tutela giuridica della schiava: un problema di politica legislativa nell' impero Romano (Bari, 1991), that covers one part of the field covered by McGinn, on which see my remarks below.
5. Earlier versions of two of the chapters -- chap. 7 "The Taxation of Roman Prostitutes," and chap. 8, "Ne serva prostituatur: Restrictive Covenants in the Sale of Slaves" -- appeared as journal publications, the former in Helios 16 (1989), 79-100, the latter in ZSS 107 (1990), 315-53. The whole is derived from a 1986 Michigan doctoral dissertation, Prostitution and Julio-Claudian Legislation: the Foundation of Social Policy in the Early Imperial Rome, supervised by Bruce Frier.
6. Like David Cohen (e.g., Law, Sexuality, and Society: The Enforcement of Morals in Classical Athens, Cambridge, 1991), McGinn argues for the connections with a culture of honor, but one might like to see some engagement with an argument that Augustus was attempting to solidify a traditional system of sexuality precisely because it was transforming so profoundly in his own age: see, e.g., Thomas Habinek, "The Invention of Sexuality in the World-City of Rome," chap. 2 (in) T. Habinek & A. Schiesaro eds., The Roman Cultural Revolution (Cambridge, 1998), pp. 22-43.
7. I shall not have much to say about the chapter devoted to prostitutes and taxation. It stands rather apart from the legal concerns of the rest of the book, and will probably be best "reviewed" as part of McGinn's forthcoming general work on prostitution in the Roman world.
8. For example, Gilfoyle, op. cit., pp. 138-9: "most sources [viz. on prostitutes] are so embedded in the discourse of pleasure, reform, and regulation that any effort to reconstruct the lived experience of these women is nearly impossible."
9. Since McGinn is almost certainly right on the meaning of the femina probrosa (an adulteress or such, not a prostitute), once he ends his analysis there is even less than once assumed in juristic interpretation about prostitutes.
10. Sicari, op. cit., esp. chap. 3, "Disciplina della clausola ne prostituatur fra il II e III secolo," pp. 87-117; she specifically contests McGinn's reading of the texts in the following manner (p. 117, n27: "Essa [i.e. McGinn's reading] individua un aspetto reale ma, a mio avviso, può construire una della motivazioni, non la sola di questo fenomeno." Notably, Sicari begins with later Christian concerns, retro-reading them "come punto di arrivo" of the whole process; McGinn, instead (e.g. p. 132f. on the punishment for adultery), rightly recognizes serious changes precisely in this area.
11. Not wholly, however, since some of the parallels are still suggestive. First of all, there existed the same "fear" of a cross-identification of slave women/prostitutes and "honorable" women (Glenda Elizabeth Gilmore, Gender and Jim Crow: Women and the Politics of White Supremacy in South Carolina, 1896-1920 (Chapel Hill, 1996), and yet the same perceived need to legislate was not there: Thomas D. Morris, Southern Slavery and the Law, 1619-1860 (Chapel Hill, 1996).