The Measure of Woman. Marie A. Kelleher

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      While the question of a woman’s relative capacity in legal matters remained open to debate, the idea of the inherently incapable woman constituted enough of a presence in Roman legal thought to combine powerfully with another Roman gender idea: natural female “modesty” or “shame” (verecundia). Judith Evans Grubbs has argued that this idea originated not in legal sources but in the broader Roman culture, and only later made its way into law.⁵⁵ Whatever the origin, by the second and third centuries century C.E.—that is, the “classical” period of Roman jurisprudence—the idea of female modesty had taken firm root in the legal literature. According to Ulpian (d. 228), another important classical jurist, women should not involve themselves in the lawsuits of others in a way that was “contrary to the modesty suitable for their sex, so that women not discharge men’s duties.”⁵⁶ A woman might act on her own behalf or on behalf of a minor, but it was up to the praetor to discern that she had not gone “beyond the modesty of her sex (sexus verecundia)” before he allowed her to lodge an accusation,⁵⁷ and restrictions on women’s participation in court were couched in explicitly gendered terms, “so that women not rush irreverently into scorn of their matronly honor on the pretext of prosecuting a lawsuit, and so that they not be compelled to be present at the gatherings of men or at trials.”⁵⁸

      We are thus left with an ambiguity in Roman law’s legacy to medieval women. On the one hand, classical jurists recognized that women of their day could and did act on their own in the public forum of the courts, that they could sue on their own behalf, and that they could answer charges lodged against them. On the other hand, powerful ideas about women’s intellectual weaknesses and general vulnerability to male influence combined with cultural norms about appropriate female behavior to create a climate inimical to respectable women’s participation in the public forum of the law courts.

      Canon law added yet another dimension to the gender ideas that medieval judicial officials had to work with.⁵⁹ Some gender ideas in the Corpus iuris canonici overlap with those of the Romans. Take, for example, the idea of female fragilitas and imbecilitas. Gratian, while he does not use these precise words, employs the same idea, declaring that “man (vir) is so-called not because of his sex but because of his virtue (virtute) of soul; woman (mulier) socalled not because of the sex of her body but because of her softness (mollitie) of mind.”⁶⁰ However, Gratian and other canonists were less concerned with any neo-Aristotelian ideas about women’s inborn qualities than with biblically founded ideas that reinforced a gender hierarchy that reflected a divine plan. According to Gratian, women’s connection to Eve’s original sin placed all women in a condition of servitude.⁶¹ This condition, however, is phrased less as a punishment than as the natural order of things: Gratian cites Paul’s analogy between man’s headship of woman and Christ’s headship of the church⁶² and shrugs off Old Testament examples of women in positions of public authority as irrelevant because the “old law” had been replaced by the perfectione gratiae brought about by Christ’s sacrifice, so that many old things no longer applied.⁶³ Although Gratian argued in at least one place for the complementarity of the sexes by asserting that “man is the head of woman; woman the body of man,”⁶⁴ his belief in the self-evident headship of male over female was further reinforced by the decretists who glossed his work: Johannes Teutonicus (ca. 1170–1245) noted that woman was created from man and should therefore be subject to him,⁶⁵ and Rolandus (fl. late 1150s) deemed women’s subordinate status to be “manifestly proved.”⁶⁶

      The decretals contained similar assumptions about women’s basic nature. An example from the early thirteenth-century chancery of Pope Innocent III may serve to illustrate the point: in his opinion on a case involving a female monastery in the diocese of Utrecht, Innocent mentions the fragilitas of the women in question. In the context of the decision as a whole, this is a passing mention, offered without comment,⁶⁷ suggesting that female weakness or incapacity was even by the early thirteenth century taken as a matter of course by men trained in the law. These assumptions were especially critical when the particular decretal concerned women’s actions in court. There seemed to be some debate, for example, as to whether it was legally permissible for women to give testimony in ecclesiastical court. Gregory IX, in his Liber extra, cites Isidore of Seville’s threefold categorization of who might and might not serve as legal witnesses:

      Regarding witnesses: condition, nature, and manner of life should be considered. Condition: that they be free, not slave, because sometimes a servant may be pressured by his master to suppress the truth. Nature: that they be male, not female, for females always produce varying and changeable testimony. Manner of life: if guiltless and irreproachable of deed. But where a good life is lacking, trustworthiness is found to be wanting.⁶⁸

      Isidore’s dismissal of women’s testimony as “varying and changeable” may hearken back to classical Roman notions of female levitas, thus reinforcing what may have been at the time only a minor note in the Roman legal assumptions about women. Yet canonists also recognized that there were certain situations in which a woman’s testimony in particular could be not only valuable but even indispensable—in cases concerning the conduct of local clergy,⁶⁹ for instance, or to discern impediments to marriage.⁷⁰ And Pope Boniface VIII (r. 1294–1303) seemed to take for granted that women would regularly be giving testimony when he specifically stipulated that women could not be compelled to appear personally in court, whatever the cause, and that if their testimony was necessary, they might pay the expenses of a judge to go to them and take their testimony in situ.⁷¹

      We might note that Boniface’s opinion is predicated on a specific gender assumption of matronly modesty; he begins, “Women, for whom it is fitting neither to wander about, nor to mix with the crowd of men.”⁷² That this decretal substantially reproduces the language of the earlier Roman legislation discussed at the beginning of this chapter indicates that, by the late thirteenth century when Boniface was pope (coincident with the early part of Jaume II’s reign in the Crown of Aragon), principles of Roman law, including their assumptions about gender, were already well integrated into the legal culture of the popes and their curia who would be making canon law. The fact that Boniface, like Innocent before him, felt that he did not need to elucidate such statements about women’s legal nature suggests that an assumption of female weakness or incapacity was something that both he and his audience took for granted. That audience would have been made up primarily of men schooled in the legal faculties of the medieval universities, and as these men returned to their homelands, they brought with them a new conceptual vocabulary with which to talk about the issues encoded within that law and incorporated those ideas into the law codes that they had a hand in compiling or adjudicating.

       Gendered Legal Assumptions in the Crown of Aragon

      By the late thirteenth and early fourteenth centuries, the ius commune constituted a substantial presence in the legal culture of the Crown of Aragon and exercised an accordingly profound influence on the construction of legal ideas about women. That these ideas were in the air during the thirteenth century when many of the law codes of the Crown territories were being formulated suggests ways in which to read gender ideas as they appear in the written law of the composite monarchy. The natural subordination of women to men that Gratian and his successors spoke of appears in Catalano-Aragonese law often enough to make its influence on legislators apparent. The assumption of male headship is most clearly visible in the many laws governing marital property (an issue that will be discussed more fully in Chapter 2) that flatly state that part of the husband’s responsibility is to support his wife financially, an obligation referred to as the “burden” (onera) of matrimony.⁷³ Since the same laws assume that part of the property that he would use to bear this burden remained the legal property of his wife, it seems clear that, in economic terms at least, lawmakers envisioned marriage as an unequal partnership between male and female, with the wife largely dependent СКАЧАТЬ