The Measure of Woman. Marie A. Kelleher
strategically against the competing narratives of both the opposing party and the culture as a whole. For a legal narrative to function, it had to be plausible to both court and community, which meant that the characters and their actions could not radically deviate from cultural expectations without risking the sympathies of their audience. The implications for the study of women and law are important: if a story has to function in the parallel cultures of both community and courtroom, we cannot assume that legal ideas about gender in the prescriptive sources were something to be “gotten around” for medieval women. Quite the contrary: those ideas had to be used.32 Legal case documents are the footprints of that use and should be read as such.
Thus, although legal sources might tell us only a little more of “what really happened” than would an Icelandic saga or a saint’s vita, they, like those other sources, provide us with some important truths about the culture that produced them. One of the underlying assumptions that runs throughout this book is that these general principles are especially applicable to ideas about gender—a persistent and resilient package of culturally constructed assumptions, the performance of which we may glimpse in the construction of legal narratives.
Accordingly, this book opens by examining the problem of the nature of legal discourse, asking how it was formed, who took part in its formation, and what was at stake for women. The first chapter begins by introducing the legal system in the later medieval Crown of Aragon, devoting special attention to the role of the ius commune in the development and practice of local law and the way that these legal developments shaped the medieval gender system. An examination of matters of gender in both the law codes of the Crown of Aragon and the principles of Roman and canon law that would have influenced legislators, judges, and other courtroom personnel reveals what seems to be a fairly solid set of assumptions about women in general, most notably that they were naturally weak, vulnerable, and modest. The second half of this chapter then moves from the realm of substantive law to consider procedural law, arguing that the representations of gender in the prescriptive sources, while important, were negotiable through the process of litigation. A brief discussion of the Romano-canonical procedure used in the courts of the Crown of Aragon in the later Middle Ages illustrates the legal mechanisms by which women and their families, friends, enemies, and neighbors were an essential part of the larger legal culture that shaped women’s identities in the later Middle Ages.
The remaining chapters examine the ideas surrounding women in relation to specific categories of legal problem. While maintaining awareness of the legal assumptions about women discussed in Chapter 1, these chapters juxtapose the experience of women from different relational categories, looking for threads that run through the overall legal ideas about women, for both common ground and fault lines. Chapter 2 investigates how the gendered power relationships implicit in the ius commune and the Catalano-Aragonese legal culture it influenced affected women’s control of property, and how women constructed legal narratives about themselves to secure control over their own economic resources. A side-by-side analysis of the legal strategies of married women and widows reveals a paradox in women’s property litigation that may stand for a part of women’s relationship to the law in general: for an individual woman to assert her rights to manage her own property in a way that ran counter to the gender assumptions of written law, a woman had to employ the conceptual language of the legal category in which the law had placed her. Thus, women’s own litigation subtly reinforced a gender system that may have had little to do with the actual experience of these same female litigants.
While the litigation in Chapter 2 concentrates on women working within the relational categories set out for them in law, Chapter 3 examines legal cases involving women’s illicit sexual activity to show how the boundaries between those categories overlapped with another matrix of female identity: that of respectability, which for women was largely (though not wholly) contingent on their sexual behavior. Whether unmarried, married, or widowed, all women could be legally divided by the binary of reputation, bona fama versus mala fama. The actual offenses of which these women stood accused differed according to relational category: fornication or prostitution for unmarried or widowed women and adultery for married women (and sometimes for widows as well). Yet the effect was similar in that women, regardless of relational category, were grouped together by legal assumptions about what was appropriate sexual behavior for women in general, and transgressing those boundaries could result in a forfeiture of some or all of their legal rights.
Chapter 4 builds on these issues of reputation and legal personality to assess how shifts in category could affect women’s litigation in cases of violence, questioning what the legal culture at all levels considered a “reasonable” expectation of violence between men and women. An examination of the issues of spousal abuse, rape, and uxoricide builds on the tension between category and slippage between categories that has been built up over the preceding chapters. While the law afforded women protections against violence, female litigants had to structure their legal arguments in such a way as to prove they were respectable enough to merit these protections. By so doing, they helped to solidify gendered legal assumptions about deserving versus undeserving women.
My overall approach in these pages is to treat the law as an ongoing dialogue about the legal nature of women, rather than merely a means by which gender ideologies might be imposed, reinforced, or subverted. Although written law necessarily forms a part of any literate society’s legal culture, it is only one variable among many. Legal ideas about women took shape in the courts, where lawyers and judges interpreted written law according to the exigencies of each particular case. But they also were formed at the level of local communities, where litigants, their families, and their neighbors interpreted the standards set out for various groups of women as they understood them and applied them to the individual women they encountered on a daily basis. This legal discourse of gender, at all levels, played an important role in constructing boundaries between the categories that applied to women. Furthermore, this study of women in the Crown of Aragon reveals areas of overlap and ambiguity in legal categories for women and suggests that these gray areas were the most dynamic parts of the legal discourse surrounding women, functioning as spaces in which the status of individual women could be negotiated, though within limits.
Chapter 1
Drawing Boundaries: Women in the Legal Landscape in the Age of Jaume II
In September 1303, Ermessenda de Cabrenys, a member of the minor nobility in the region around the northern Catalan city of Girona, was called to appear before the veguer and his official judge to answer charges against her. The documents do not specify the exact nature of her offense, except to say that she had violated the statutes of the Peace and Truce, but it likely involved one or more of the substantial debts that she had accumulated. An agreement for one of these, dated December 29, 1299, and bound together with the charges of the Peace and Truce violations, showed that she had convinced Bernat de Petra and Jaume de Bertilio, partners in a Girona cloth mercantile, to extend her credit in the substantial sum of 759 sous for unspecified fabric for her own use and that of her household. In exchange for this credit, she offered up eighteen “hostages”—that is, people to stand surety for her should she default. Finally, she stipulated that she would not ask for any extensions on the debt, nor would she leave the district of Girona until the debt was paid.1
This final provision was the subject of the 1303 hearing that brought Ermessenda’s case into the registers of the chancery of the Crown of Aragon. At that time, it was not Ermessenda de Cabrenys who appeared in the veguer’s court but Berenguer de Devesia, a trained lawyer acting as her procurator and official legal representative. Reaching back to provisions contained in the sixth-century Code of Justinian, Berenguer argued that because his client was a materfamilias—a term of ancient Roman origin that comprehended both sex and status but not motherhood per se2—it was inappropriate for the veguer to compel her to mix with “crowds of men”