The Measure of Woman. Marie A. Kelleher

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СКАЧАТЬ of the fourteenth were a period of stabilization of the peninsular borders of the Crown of Aragon and its relations with its immediate neighbors. During this time, the Catalano-Aragonese monarchs turned their attention to consolidating their authority over their own vassals and to expanding into another region that would become the defining context for the Crown during the later Middle Ages: the Mediterranean. One might well argue that the region that was to become the Crown of Aragon had faced the Mediterranean ever since Roman times, but the Mediterranean context began to take precedence over all others during the thirteenth and early fourteenth centuries. In the century or so between 1229 and 1324, the Catalano-Aragonese monarchs extended their domains into Mallorca, Sicily and southern Italy, and Sardinia.¹⁴ During the early decades of this period of maritime expansion, the Crown of Aragon’s growing influence in the Mediterranean caused no alarm among the other Christian political and mercantile powers, principally because Jaume I confined his actions to the western Mediterranean, expanding in what were seen as defensive actions against the Muslim powers off his coast. This equilibrium was ruptured, however, in 1282 with Jaume’s son Pere II’s intervention in Sicily in the wake of the anti-Angevin uprising known as the Sicilian Vespers. The aftermath of this incident saw a branch of the royal house of Barcelona installed as rulers of Sicily and southern Italy, and also brought Catalan merchants into the eastern Mediterranean in significant numbers for the first time, impinging on the Italian cities’ monopoly on trade with the eastern Mediterranean and routes into central Asia.¹⁵ However, while the presence of Catalano-Aragonese merchants and mercenaries in the eastern Mediterranean troubled relations with some of the Crown’s Italian neighbors, their establishment of important political and commercial footholds in the region intensified an already ongoing process of cultural interchange. As Catalano-Aragonese merchants increased their activity in an international trade that encompassed everything from grain to ostrich plumes to the human cargo of the slave market, the Crown of Aragon also participated in the Mediterranean exchange of ideas in the fields of architecture, painting, and humanist literature during the later Middle Ages.¹⁶

      But even before this period of commercial and military-political expansion began, Catalan and Aragonese scholars had been taking part in an intellectual interchange that brought together students and scholars from across Europe: the development of a shared legal culture, based in the Mediterranean, first nurtured in the legal faculties of Bologna and Montpellier, quickly spreading north of the Alps and the Pyrenees to become the foundation of the legal culture of continental Europe as a whole. This shared legal movement—the ius commune—was to bring with it a set of gender ideas that would have serious implications for women in the Crown of Aragon, as well as in other locations throughout the Mediterranean and beyond. But it is important to note that the legal scholars who returned to the cities, towns, and courts of the Crown of Aragon with these new ideas did not simply begin applying the gendered precepts of Roman and canon law to the women they encountered in their courtrooms. Rather, the newly acquired legal education of the judge, lawyer, or notary in question was layered over extant laws that varied from one part of the Crown lands to the next. It is to a brief description of this multilayered legal system that we turn first.

      The Ius Commune in the Crown Territories

      The legal history of the Crown territories, as elsewhere in Western Europe, underwent an important transition during the thirteenth century. As the Crown territories expanded during the high and later Middle Ages, monarchs of the Crown of Aragon worked to develop institutions that served their own interests, often in opposition to local magnates who at times banded together in uniones to uphold local custom against the encroachments of a new body of law that both undermined customary law and tended to support centralized legal authority.¹⁷ One important aid in the monarchs’ project of centralization was the gradual incorporation of the principles of the ius commune, which would prove an important factor in the way that women’s place in society was defined. The ius commune was a combination of Roman law and canon law, and its widespread influence on later medieval law was the product of the resurgence in formal education in Western Europe during the high and later Middle Ages.¹⁸ The Roman law of the ius commune was drawn from the Roman emperor Justinian’s massive compilations of his own laws, together with those dating from the classical age of Roman jurisprudence in the second and third centuries C.E. These codes became the subject of renewed interest on the part of legal scholars in Pavia and Bologna, most notably Irnerius (fl. 1070–1100), who was the first in a long line of Bologna legal scholars to comment and expound upon the Justinianic corpus.¹⁹

      Around the same time that Irnerius and his immediate successors were working on recovering and digesting Roman civil law, a twelfth-century monk known to history as Gratian embarked on his own effort to bring order to the chaos that marked ecclesiastical law before the twelfth century.²⁰ Sometime in the early 1140s, Gratian compiled his Concordantia discordantium canonum—more commonly known as the Decretum—in an attempt not only to bring together the numerous canons in a systematic collection but also to resolve the apparent conflicts that they presented. Over the course of the following century and a half, popes added rescripts addressing specific issues. These “decretals” were collected into volumes that, together with the Decretum, came to be known as the Corpus iuris canonici or “body of canon law.”²¹

      The Corpus iuris civilis and the Corpus iuris canonici, commonly referred to together as the ius commune, comprised the two halves of the basic curriculum of the medieval law faculties. It is important to note that no secular court actually applied the ius commune directly; rather, the new law served as a conceptual framework for the creation and interpretation of secular codes – what Peter Stein has called a “universal grammar of law.”²² In the Crown of Aragon, as in much of Europe, the incorporation of the legal principles of the ius commune reached its height during the twelfth and thirteenth centuries, when monarchs throughout Western Europe were drawing up law codes for their realms.²³ But the medieval Crown of Aragon was far from a blank slate when it came to Roman law, the groundwork having been laid during the early Middle Ages, when the peninsula was dominated by Visigothic law, which was heavily romanizing in both content and structure.²⁴ The persistence of Roman law within the Crown territories throughout the tenth and eleventh centuries became most evident when portions of Roman law were incorporated into the twelfth-century redaction of the Usatges of Barcelona, a compilation of “feudal” customs and usages to which the compilers not only added excerpts from the Visigothic Liber iudiciorum that it was meant to complement but also cited collections of or commentaries on Roman law, such as the sixthcentury Romano-Visigothic Breviary of Alaric, the Exceptiones Petri (an Italian commentary on Roman law roughly contemporaneous with Irnerius), or even Justinian’s Corpus iuris civilis itself.²⁵

      The continuing influence of Roman legal ideas throughout the early Middle Ages meant that, in Catalonia at least, the ideas of Roman law fell upon fertile soil. Of all the peninsular kingdoms that would form the nucleus of the Crown of Aragon, Catalonia experienced the earliest and most rapid incorporation of the ius commune, due in part to geographic proximity to and commercial ties with the Italian communes that were the crucible of the Roman law revival and to the proximity of Montpellier, an important early center of legal scholarship in the Midi. Judicial and notarial activity further increased the Roman flavor of law in the Crown of Aragon during the thirteenth century, by which time Roman law (either verbatim or paraphrased) was common in new legislation throughout the Crown territories, even in redactions of local customs;²⁶ by the fourteenth century, Catalano-Aragonese jurists increasingly invoked Roman law in their deliberations and verdicts.²⁷

      The influence of the ius commune on the law of the Crown of Aragon was not limited to Catalonia. In the kingdom of Aragon, Roman legal ideas were incorporated into the legal culture of that kingdom more slowly than in other regions of the Crown.²⁸ Nevertheless, the ius commune had made its way into the legal culture of the kingdom of Aragon by the second half of the thirteenth century, culminating in Jaume I’s approval in 1247 of the bishop of Huesca Vidal de Cañellas’s systematic collection of customs, judicial СКАЧАТЬ