The Measure of Woman. Marie A. Kelleher

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СКАЧАТЬ law because the law did not always treat “woman” as a unitary category. Finally, women of all estates and life stages were subject to a third set of legal identities, that of their respectability or reputation, a measure of how well they adhered to the expectations about women in general, as well as about women within any relational subcategory. Reputation could be proven or damaged in a number of ways; for example, recent scholarly investigations of women’s speech, especially the phenomenon of scolding, have shown how “sins of the tongue” could undermine a woman’s reputation.³¹ The most obvious proving ground of female reputation, however, was a woman’s sexual behavior: although extramarital sex was not uncommon in the later Middle Ages, marriage was the only approved venue for sexual activity, and extramarital sex, even when not a prosecutable offense in and of itself, could undermine a woman’s reputation. As Chapters 3 and 4 will discuss, loss of reputation carried with it serious legal consequences, not least among them the forfeiture of the full protection of law.

      Self-representation was thus a high-stakes game for medieval women. Legal records offer traces of how individual women negotiated these overlapping identities to assert their own stories. But the process of litigation, that act of storytelling, did not take place within a vacuum. Rather it had to be positioned 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 СКАЧАТЬ