The Measure of Woman. Marie A. Kelleher
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court (either by themselves or through their legal representatives) and the way other people told stories about them reveals more than merely how women fit into their communities and the extent to which their experience adhered to gendered cultural norms enshrined in law. The process of litigation itself reveals women’s active participation in the assimilation of a gender system encoded in a centuries-old law that was coming into new prominence across the European continent during the later Middle Ages. In order to be effective litigators, women had to represent themselves in ways that fit within the boundaries of gender as imagined in the legal sources. But by so doing, they helped to reify the gender assumptions that underpinned the substantive law, even if the details of these women’s own stories belied those very assumptions.
Turning first to the question of medieval Iberian women in general, probably the most important English-language book on this subject to date is Heath Dillard’s Daughters of the Reconquest. Writing over twenty-five years ago, Dillard noted that the scholarly treatments of the Christian reconquest of the Iberian peninsula had ignored the contributions of women. Working with the law codes of Castile during the high medieval period of Christian settlement, Dillard sketched out a picture of women’s lives, read explicitly in a frontier context, arguing that women were vital in the Christian resettlement efforts and that their presence was essential in turning frontier garrisons into thriving Christian towns.1
The writing and publication of Dillard’s book should be read in the context of two scholarly trends at the time: a growing interest in women among medievalists in Spain, led by scholars like Teresa Maria Vinyoles i Vidal and Cristina Segura Graíño, and new research from Anglo-American scholars on the lives of ordinary women in premodern societies, spearheaded by scholars working in English and Italian archives. Interest in medieval Spanish women continued to develop in the peninsula during the 1980s and 1990s, becoming ever more informed by feminist theory and praxis, resulting in a body of scholarship that examined particular forms of women’s culture in the Middle Ages. Within the Anglo-American scholarly community, however, interest in medieval Iberia came to focus largely on that which makes Iberia nearly unique in the medieval West: the often uneasy coexistence of Christians, Jews, and Muslims in the peninsular lands, whether under Christian or Islamic rule. This wave of scholarly interest in the cultural pluralism and hybridity of medieval Iberia has not only offered new perspectives on a particular geographic area long considered marginal but has encouraged a reconsideration of how we define the geographic, cultural, and conceptual boundaries of medieval Europe itself. But the dominance of this vital subfield had the unfortunate side effect of pushing Iberian women’s history into the background in the English-language scholarly community, even at a time when publications, conferences, and symposia in the fields of women’s and gender history in the English-speaking world were especially strong.2
The past few years, however, have seen a renewed interest among Anglophone scholars in the history of Iberian women. This is especially evident among scholars of the early modern era, who are developing increasingly rich portraits of Iberian women of this period by reading against the grain in the rich archives of the Inquisition, as well as by exploring the more familiar municipal, notarial, and guild archives to uncover the lives of both ordinary and extraordinary women.3 While the documentary record for the Middle Ages is not as rich, scholars in the English-speaking world have begun to return to the study of medieval Iberian women, both noble and more ordinary.4 This book attempts to contribute to a general understanding of women in one region of medieval Europe: both what made them unique and how they fit into the larger story of women in broader context, whether of the medieval Mediterranean, or of the medieval West in general.
But this book is more than just a portrait of one particular group of women; it is also the story of the encounter between medieval women and a revolution in legal culture that, among other things, provided a more precise conceptual vocabulary with which to talk about gender. The following pages are a history of medieval Spanish women read through the lens of what was arguably the most important development in legal culture during the entire medieval period: the recovery of Roman law, combined with the rationalized study of canon law, and the diffusion of the ideals of these two bodies of law—together known as the ius commune—throughout western Europe. This was a period of intense jurisprudential activity not only in the Crown of Aragon but also throughout the medieval West. Territorial sovereigns, especially kings, sought to bolster claims to centralized authority by sponsoring the creation of law codes grounded in the principles of the recently “rediscovered” law of the Roman Empire, replacing older sets of customs and privileges that had been designed with a much more localized authority in mind.5 These developments as they appeared in the Crown of Aragon will be treated in the first half of Chapter 1, but it is appropriate here to note that the same ideas were spreading throughout the European continent, resulting in ideas about gender that bore some striking similarities throughout that territory. In the Crown of Aragon’s neighbor Castile, Roman law was at the heart of the great law code of the Castilian Middle Ages, King Alfonso X’s thirteenth-century Siete partidas.6 Alfonso, like many rulers of his day, embraced the ius commune for its centralizing assumptions about the nature of political authority, rather than for what it had to say about gender. But those gender ideas were woven into the fabric of the imported law and, from there, made their way into the legal culture of places like Castile. The Partidas, like the Roman law upon which they were based, outlined situations in which women acted as independent or semiindependent legal agents as a matter of course. Women were not expected to be in court as often as their male counterparts, but they seem to have been a frequent enough presence to require that the law address their legal role in detail. Still, a Castilian woman’s greatest potential sphere of legal activity was in relation to her immediate family members and family property. In general, the Partidas treat women as a class as vulnerable and in need of protection—a reflection of Roman jurists’ vision of women as permanent minors.7
Women’s legal status in the Italian cities at the heart of the Roman law revival was in many ways similar to that of Castilian women: municipal statutes regarded women in general as physically and morally weak and in need of protection from themselves as well as from others.8 But as in Castile, the frequent presence of these “vulnerable” women in court demonstrates important differences between the legal rhetoric of female incapacity and women’s actual legal standing, especially with regard to property.9 We should also note that, unless otherwise specified, laws addressed to “men” generically were understood to apply to both sexes.10 This latter consideration should suggest not an effacement of the female but rather an indication that jurists trained in the ius commune understood that women had legal interests—and legal personalities—distinct from those of the men in their lives.
This apparent contradiction between assumptions about women’s fundamental vulnerability or incapacity as legal actors on the one hand and the provisions in law for them to be legal actors on the other may have been the result of competing legal systems in the northern Italian cities, where Roman law at times proved less restrictive to women’s legal agency than was older customary law (in this case, Lombard law and its idea of mundium, or the male head of household’s near-absolute rule over the women in his household). Thus, the later medieval Italian cities were the scene of a collision between Roman law ideas of female incapacity, which restricted (though did not eliminate) a woman’s public activities while maintaining her essential legal personhood, and the municipal statutes, shaped as they were by the interests of the urban patriciate, which tended to focus not so much on female incapacity or vulnerability as female absorption into the patriarchal casa, with all the restriction of legal personhood that entailed.11
The situation of medieval Italian women with regard to the law illustrates how individual actors within a given legal system might exercise choices about which part of the legal framework available to them made the most sense in a given situation. Further north, in France and the Low Countries, the most important competition between legal systems (and the gendered logics they encapsulated) was the rough division between customary law in the North and traditions closer to Roman law in the south. The gendered rhetoric of both legal cultures generally presented women as inferior to men, though the customary law of