The Measure of Woman - Marie A. Kelleher The Middle Ages Series

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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 rulings, and royal laws that came to serve as the definitive version of the Fueros of Aragon—a collection that resembled Justinianic Roman law in both organization and content.29

      The thirteenth-century conquest of the territories that would become the kingdom of Valencia added yet another dimension to the legal landscape of the later medieval Crown of Aragon. The legal history of early postconquest Valencia at first echoed that of New Catalonia, as the exigencies of conquest and settlement required concessions of privileges to individual localities.30 Much of this early law was based on foundation charters conceded by Jaume I, but the most common source of law in the very early settlement period was the Fueros of Aragon, brought by the Aragonese nobles who had been instrumental in the conquest and early settlement of the newly conquered territory.31 But the legal and political terrain shifted when Jaume I declared Valencia an autonomous kingdom and gradually imposed the laws of its royal capital—the 1240 Furs de Valencia—on the kingdom as a whole. These laws bore a much closer relationship to those of Catalonia than to the Aragonese fueros and, as such, were heavily influenced by the ius commune, incorporating adapted extracts from the Digest and the Corpus iuris canonici, and sometimes reproducing verbatim parts of Justinian’s Code.32

      The legal diversity of the Crown of Aragon was further complicated by the Crown’s numerous Jewish and Muslim communities that, at least theoretically, maintained a degree of judicial and political sovereignty, although royal protection came at the price of dependence on continued royal favor. As a rule, the Muslim and Jewish aljamas (the corporate entities that corresponded to these religious minority districts) and their officials adjudicated internal disputes according to their own law. Among the Crown’s Jews, rabbinical authorities generally only permitted bringing internal affairs before the Christian courts when the fear of one of the parties threatened to

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