The Measure of Woman. Marie A. Kelleher
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their own distinct historical experience. Some of this experience is documented in the state archives of the Crown of Aragon, and scholars have begun to explore it, asking thought-provoking questions that rightly cause us to reexamine what we mean by the category of “medieval women.”20 But the argument in this book focuses on the interaction between women and a particular body of law, one to which Muslim and Jewish women were only peripherally subject. Thus, the story of women here is primarily the story of Christian women, operating in a legal context with which most Jewish and Muslim women would directly interact only on rare occasions.
Finally, because most of the surviving records are short notices rather than full trial transcripts, they contain only the basic facts, few details, and no verdicts. Such terse records present serious challenges to the researcher determined to coax a historical narrative out of them. While it is tempting to discuss the incidents reported in these records as fact, we need to remain aware that we rarely have more than accusations, which do not always correspond to an objective truth that may not be recoverable. In these circumstances, letting the record speak for itself is not an option.
This situation presents a particular problem for historians of medieval women, for whom legal sources, whether prescriptive or descriptive, have always been the most fruitful source of information about women’s experience. Historians’ approaches to this meeting between women and law have, we should note, gone through significant transformations over the past halfcentury or so. Early examinations of women and law largely depended on prescriptive sources like law codes, which tend to paint a picture of women as dependent and largely powerless. Taking these sources at face value led to a historical vision that emphasized law as a force oppressing women, one that constrained their activities and limited their lives. As recently as 1983, Cristina Segura Graíño could argue in her introduction to a collection of essays on medieval Iberian women and law that “women had to submit to men and did not fully enjoy their rights; only men enjoyed the full privileges that the law provided for, which for women, were limited.”21
Around the early 1980s, however, historians of medieval women were beginning to question the totality of the influence of written law. For example, at the same time that she was arguing that the law was a fundamentally limiting force for women, Segura Graíño opened the question of whether written law might not be sufficient as a source for understanding women’s historical experience,22 and Heath Dillard, whose Daughters of the Reconquest relies almost exclusively on prescriptive sources, raised (though did not resolve) the methodological problem of potential discrepancies between law and practice.23 In the subsequent decades, historians interested in law and gender turned to descriptive sources that, combined with nonlegal sources, focused on the gap between the gendered ideals expounded in the law codes on the one hand and the lived experience of women as represented in litigation on the other, tending to show women either subverting the law or using it to their own advantage.24
Even more recently, historians interested in law and legal processes have been raising important questions about the way law works, as both text and context, and have argued that the nature of law itself helps to shape human relationships. Daniel Lord Smail, for example, has argued for medieval Marseille that the act of choosing litigation was a form of status negotiation and communication.25 Carol Lansing has reached similar conclusions in her investigations of women’s identity in medieval Bologna, showing female litigants and witnesses using the legal system to communicate something about their status that did not fit within the categories developed by the learned law.26 The work of these two historians, among others, represents a new approach to the relationship between individuals and the law, and signals new ways to use legal sources to understand the historical experience of women.
We should not, however, approach even the most descriptive (as opposed to prescriptive) legal sources as a mirror held up to women’s lives. Legal sources are more than just a set of source materials; they are materials shaped by a very particular context, and an understanding of that context is essential to how we read the documents and the conclusions that we draw from them. It bears noting that even witness depositions, often the closest we get to defendants’ experience in their own words, are actually responses to specific questions posed by court personnel, questions that were based on a clerical/legal elite’s understanding of what was relevant and what was not.27 In short, the legal record is as much an act of forgetting as it is one of remembering,28 and when women are involved, we should assume that legal professionals’ understanding of gender would have shaped their line of questioning and the portions of the answers that they felt were worth recording.
The idea of litigation as a conscious act of narrative construction is not new. Over twenty years ago, Natalie Zemon Davis’s Fiction in the Archives detailed the way that litigants in early modern France constructed their pardon appeals, arguing that these “fictions” reveal a certain kind of truth, even if their precise factual content is open to debate. Although the defendant was the primary author of these fictions, that defendant had to draw on his or her experience of storytelling and rough understanding of what might be considered exculpating circumstances. He or she worked as part of a team that included notaries and lawyers who would help the primary author frame the story in a way that was most likely to make his or her case.29 The collaborative nature of narrative construction within legal sources is thus a second point that must be borne in mind when attempting to use these sources to understand women’s historical experience. Self-representations that appear to be women’s own are in fact only partly so: if women (and men as well, for that matter) wanted to be successful in the judicial arena, they had to present both their cases and themselves in terms that were both legally and culturally comprehensible.30
For women in the Middle Ages, this meeting of legal and cultural expectations required them to present themselves as they fit into three overlapping matrices of identity that run through most, if not all, prescriptive sources of that era. The first of these was a set of legal assumptions about the essential nature of women in general. Lawmakers, judges, and lawyers in the later medieval Crown of Aragon were trained in a legal system that emphasized women’s essential incapacity in matters involving the public sphere, an incapacity that made them deserving of special legal protections but also subjected them to special restrictions. The second factor in women’s legal identity was their relation to a given man. A woman might be identified as daughter, wife, or widow of so-and-so, a relationship that would entail a certain set of cultural expectations: women’s relationships to fathers, husbands (living or dead), and other male authority figures governed their ability to exercise autonomous authority, their control over property, their sexuality, and how violence against them would be measured. The practical effect of these relationships could further differ in both content and degree of intensity depending on a woman’s socioeconomic station. To put it another way, in spite of lawmakers’ many stated and tacit assumptions about the relative capacities and failings of the female sex in general, there was not a single relationship between women and 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