The Measure of Woman. Marie A. Kelleher

Crown territories usually only ended up in Christian courts in cases of appeals, or when they were involved in a legal dispute that crossed confessional lines.³⁴ Christian authorities did intervene in both the financial and judicial affairs of these ostensibly autonomous communities, and the level of the aljamas’ practical autonomy ebbed and flowed over the decades and centuries of the high and later Middle Ages.³⁵ Nonetheless, the fact that cases internal to the Islamic and Jewish population in the Crown of Aragon were theoretically the province of that aljama’s own officials meant that, with the exception of cases involving female slaves or interconfessional sexuality, relatively few cases involving Muslim or Jewish women came before the royal courts.³⁶ On the other hand, we can assume that those that did were in some way important to either the monarchs’ maintenance of their own sovereignty or their conceptions of women’s roles and therefore merit examination.

      As the Catalano-Aragonese presence in the law faculties at Bologna and Montpellier increased during the thirteenth and fourteenth centuries and with the foundation of an indigenous studium generale in the Catalan town of Lleida in 1300,³⁷ the products of this education increasingly invoked Roman law in their deliberations, documents, and verdicts upon their return to the Crown of Aragon to serve as lawyers, jurists, and notaries.³⁸ But the growing influence of this “foreign” law did not pass without causing alarm in some quarters. Roman law was popular among the educated class of jurists but faced resistance from lay magnates who feared that it would erode traditional privileges linked to status and land tenure. Resistance was perhaps strongest in the kingdom of Aragon, where the nobles who had long had an uneasy relationship with the Barcelonan monarchs³⁹ saw the new law as a threat to their legal and territorial sovereignty and, in the thirteenth century, went so far as to lodge a formal complaint with King Jaume I about the preponderance of Romanists in his court who handed down rulings contrary to their own laws.⁴⁰

      Possibly in response to his Aragonese magnates, or possibly merely as an affirmation of his own legal sovereignty, Jaume I himself twice (in 1243 and 1251⁴¹) prohibited the direct application of the ius commune in Crown courts.⁴² However, royal authorities seem to have enforced these edicts sporadically at best. In fact, many of the thirteenth-century codes specifically mention recourse to Roman law as a supplementary law when other legal traditions do not adequately treat a subject under analysis. In Catalonia, the Costums of Lleida, for example, included Roman law among the many laws that might be cited—admittedly, only after the Costums themselves, the royal privileges, the Usatges of Catalonia, and even Visigothic law. Likewise, the Costums of Tortosa proposed an order of citations that proceeded from Costums to royal Constitucions and then to the ius commune. And in the kingdom of Valencia in 1309, Jaume II issued an edict allowing the justicia to use the substantive law of the ius commune to resolve any legal issue not directly addressed in the Furs.⁴³ Additionally, jurists throughout the Crown of Aragon were permitted recourse to the principles of aequitas (that is, justice as perceived in human relations but not set down in the law of a given region) in their decisions—a provision that seem designed to allow these educated jurists to apply basic principles of the ius commune to their decisions.⁴⁴

      Given these opportunities to use the principles of the law in which they had been trained, legal professionals in the later medieval Crown of Aragon played an important role in the growth of the influence of the ius commune. By 1359, when Pere III (r. 1336–87) required advocates, judges, and assessors to be familiar with the law of either the Corpus iuris civilis or at least the Corpus iuris canonici,⁴⁵ the ius commune had permeated the juridical atmosphere of Catalonia, from custom and feudal law to royal decrees, with jurists even known to invoke the ius commune in preference to Catalan laws.⁴⁶ Even in the kingdom of Aragon, judges incorporated Roman law and legal principles in the observancias (thirteenth- and fourteenth-century Aragonese jurists’ rulings and interpretations of the Fueros). These observancias gained authority by their continuous use and, once they had been written down during the second half of the thirteenth century, eventually equaled the Fueros themselves as a source of law.⁴⁷ Even the royal law of the Constitucions could be rendered invalid if it ran contrary to the ius commune, and the first compilation of the Constitucions followed the systematic order of Justinian’s Code.⁴⁸

      Gender and the Ius Commune

      As both Roman and canon law made their way into the legal systems of the Crown of Aragon, the form and content of the gender assumptions that underpinned many of these laws were absorbed along with them, lending a specificity to the conceptual vocabulary that women had to use to define themselves when litigating. One area in particular where the influence of the Roman law was notable was in questions of women’s legal agency and their perceived ability to handle their own affairs competently. Womanly weakness (fragilitas) and incapacity (imbecilitas) were two of the most commonly cited gender ideas in classical Roman law; these concepts encouraged the courts to treat women as permanent minors when it came to legal matters.⁴⁹ This characterization was not, however, absolute. The influential classical jurist Gaius (fl. 130–180) noted that the tutelage of adult women was, at his time, rationalized in terms of their “light-mindedness” (animi levitatis),⁵⁰ but he also argued against this apparently common idea, calling it “specious, rather than true.”⁵¹ As the gradual diminution of the institution of guardianship for women in the late Republic and early Roman Empire had resulted in ever-increasing numbers of Roman women who were independent legal persons not under the tutelage of a paterfamilias, the idea of women’s innate legal incapacity did not mesh well with the observable fact that women did handle their affairs competently.⁵² Suzanne Dixon has argued that guardianship of adult women was only ever about property transmission, and that late republican and early imperial ideas about women’s incapacity were the result of Roman jurists’ efforts to explain a system of unknown origin. The only analogy available to them was the tutorship of minors, which was manifestly about legal incapacity.⁵³ Nevertheless, the fact that Gaius apparently argued against a perception common in his day suggests that, for legal writers, the matter of women’s light-mindedness (which we might oppose to the Roman idea of gravitas or “weightiness” necessary to the public life of Roman men) was very much an open question.⁵⁴

      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