The Measure of Woman. Marie A. Kelleher

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      The growing specialization and professionalization of the law played an important role in this process of translation. By the time that the cases discussed in this and the following chapters came to court, a litigant, whether male or female, had to navigate a tortuous path through not only the complicated and overlapping jurisdictions of the Crown of Aragon but also through the morass of procedural law. The later Middle Ages saw a proliferation of specialized interpretive guidebooks, written by university-trained legal scholars and meant to aid legal practitioners in navigating their way through the complexities of Romano-canonical procedure.¹⁵⁶ Specialized procedure also required specialized legal professionals: advocates to advise both plaintiffs and defendants on the law, and judges and legal experts to sort out the legal nuances for the veguers, batlles, justicias, and assorted other judicial officers who were not themselves trained in law. Considering how complicated the law had become, we should not be surprised to see female litigants operating in court with the assistance of procurators, advocates, and other legal representatives. While some of this mediation of women’s participation in their own litigation may have been the result of gendered ideas about women’s role in the public forum of the courts, the only legal bar in the ius commune on women’s participation was that they should not be compelled to represent others in court, and even this rule had its exceptions. While gender undoubtedly played a role in women’s frequent recourse to procurators and other male representatives, the very complexity of the court system probably also had a lot to do with it: as James Brundage has pointed out, by the later Middle Ages (much as in our own time), it would be a foolish business indeed for an untrained layperson to attempt to navigate the court system unassisted.¹⁵⁷ On the other hand, the procedural innovations that relied on fama meant that community knowledge about both events and people would take on increasing importance, giving laypeople, both male and female, a voice in the outcome of a legal case, thus making them participants in the shaping of women’s legal identity.

      Conclusions

      The later medieval period in the Crown of Aragon was a time of great ferment in the culture of the learned law. Spurred in part by the increasing number of jurists trained in the ius commune in the first half of the thirteenth century, the count-kings of the Crown of Aragon sponsored new codifications of regional law, drawn up according to the paradigms of Roman and, to a lesser degree, canon law. Although the penetration of the new law was by necessity incomplete—monarchs had to contend with persistence of local custom, seigneurial jurisdictions, semiautonomous Jewish and Muslim communities, and even antiregalian uniones in Aragon and Valencia—by the end of the thirteenth century the ius commune formed the fundamental underpinning of both substantive and procedural law throughout most of the Crown territories.

      As the next chapter will show, both Roman and canon law, like law codes throughout early and high Middle Ages, addressed situations involving women according to relational category—that is, whether they were unmarried women, wives, or widows. What the ius commune added to the legal landscape was a conceptual vision of “woman” as a broad legal category. The overarching ideas about women in the ius commune—that they were, as a group, vulnerable, weak, or naturally modest, and thus in need of male protection in their dealings in the public sphere—permeated both Roman and canon law. Yet even during the centuries that these gendered legal assumptions were taking shape, they were the subject of some debate and may have been honored as much in the breach as in the observance.

      Catalano-Aragonese jurists, legislators, and litigants inherited these overarching ideas about women’s legal nature, but it is only fair to assume that they must have approached these sweeping assumptions with some of the same ambivalence as their predecessors. The inherent contradictions of the legal culture as it related to women are perhaps most evident in the field of procedural law. Women’s supposed incapacity was belied by their willingness to go to court to defend their own interests; medieval jurists’ frequent recourse to women’s testimony demonstrates that the written law’s image of women as vulnerable and incapable legal beings was not always reflected in practice.

      Yet we cannot pretend that Romano-canonical ideas about women in general had no impact on women’s lives. Nor should contradictions be oversimplified to a contest between written law and reality of women’s experience, or even necessarily read as women subverting the law. Jurists and laypeople alike seemed quite capable of working with the contradictions that were built into the system. In fact, embracing the gendered conceptual vocabulary of the ius commune was essential to the legal strategies of female litigants in this period. Returning to the case outlined at the beginning of this chapter, Ermessenda de Cabrenys’s procurator tried to use gendered legal ideas to exempt his client from the obligation to appear in person to answer charges brought against her. Although this defense strategy ultimately proved fruitless (both the veguer and his judge-ordinary insisted that Ermessenda appear in person), it seems at least reasonable in the context of the Roman law revival of the high and later Middle Ages. There was, however, a catch for women like Ermessenda who might choose to employ such a strategy or have it employed on their behalf: Roman ideas about the legal status of the materfamilias, like many other later medieval legal ideas about gender, were firmly bound to the Roman and ecclesiastical gender systems that helped to produce them, and medieval legal representatives had no cause to try to divorce the one from the other. A Roman praetor might have felt comfortable with the language that Berenguer used in defense of his client Ermessenda, referring to her “matronly modesty” (matronalis pudoris)¹⁵⁸ and saying that the veguer’s order that she present herself personally in his court was “contrary to the modesty and shame of females” (contra pudorem ac verecundiam feminarum)¹⁵⁹—all of which hearkened back to his opening argument that it was inappropriate for a materfamilias to mix with the crowds of men at the law courts.¹⁶⁰ Ermessenda’s procurator thus used a provision of Roman law with a specific gender meaning—that the nature of women made it inappropriate for them to be forced to appear in the implicitly male world of the law courts—in order to assert his client’s immunity; this, despite the fact that Ermessenda’s previous business dealings had already proven her quite capable of undertaking legal action on her own behalf.

      Ermessenda de Cabrenys’s case before the legal authorities of Girona is not only located at the intersection of law and gender but also illustrates the complexity of the relationship between the two. The reception in the Crown of Aragon of the Roman and canonical legal traditions that formed the ius commune added an element to the interplay of law and culture that would not have been present a little over a century earlier. Yet that element was not monolithic; rather, it encapsulated several ideas about gender as it related to women’s standing before the law.

      Jurists, litigants, and their representatives thus had not one or two gender ideas to choose from but many. As we shall see in the following chapters, some of these were applied to women in general, while others differed according to a woman’s life stage, marital status, and reputation within her community. Social standing (where the documents allow us to discern it) could make a difference as well: Ermessenda de Cabrenys’s position within the community and her ability to hire highly trained legal counsel mean that the ideas outlined in this chapter are more explicit in her case than they might be in others. Yet we might assume that this same set of often contradictory ideas ran through much of the later medieval jurisprudence involving women. The combination of increasingly complex substantive and procedural law with the importance of fama meant that many different types of knowledge went into the formation of both a legal identity and a court’s verdict. How the interaction of those ideas played out often depended upon the particulars of a given case. If we wish to understand fully how the interaction of law and culture reflected or influenced women’s situation in both law courts and life, we need to take into account not only written and received law but also the larger discourses of community reputation, social networks, and a woman’s relationship with the men in her world—variables that are the subject of the following chapters.