If law is viewed as an instrument of social control, its content and its efficacy will depend on its relationship to social customs and institutions, not least those which define the social meanings of sex and gender: ‘men and women are both controlled by such mechanisms as the family, marriage, work and concepts of “masculinity” and “femininity” ’ (Morris 1987: 17). The early Roman community (which did not have the separate identity implied by the word ‘state’) was built around the family and household, headed by the paterfamilias, the eldest male ascendant, with his absolute legal jurisdiction, including the power of life and death (ius vitae necisque), over his descendants. Its religious character and continuity was expressed in its sacra, which further identified the family as part of the community as religious construct.

In this system a woman's control of her own body was subordinate to that of her family, of birth and then of marriage. Her function was to provide children; remaining single was, for most, not an option, until the advent of Christianity. Their marriages were arranged by their paterfamilias, as were those of their brothers, but the consent of the parties was also a requirement (Treggiari 1991: 170–80). In manus-marriage a woman became subject to the legal power of her husband, as if he were her father; in non-manus marriage she remained under the power of her father and a member, for religious and legal purposes, of his household (1991: 16–34).