The first IHR Earlier Middle Ages seminar of the summer term (11th May) brought us extra women, with a paper on “Women in early medieval laws and lawcodes” from the King’s College London double act of Jinty Nelson and Alice Rio. The paper was the “Director’s Cut” of a chapter they are contributing to the forthcoming Oxford Handbook of Medieval Women and Gender. It started with a brief overview of the historiography of the barbarian lawcodes, and how scholarship is now rejecting the traditional binaries of them as reflecting custom or contemporary practice, as “German” versus “Roman” or as practical versus ideological. Jinty also sketched in some of the previous scholarly views on women’s position in the early Middle Ages, such as McNamara and Wemple’s idea of a golden age of the family (and hence of women) in the C10 and C11, Georges Duby’s views of how changes in family structure reinforce patrilineage, and Pauline Stafford’s more cautious views on a supposed C11 “family mutation”.
But the bulk of the paper was taken up by a detailed analysis of barbarian lawcodes, ranging from the C6 to the C11, based on a database of references to women that Alice Rio had compiled. Alice started with (literal) valuations of women, based on the fines/wergeld for particular categories of injury, and looking for parallels between the different codes. She pointed out that although Pactis Legis Salicae XLI, 15-17 punishes the killing of a woman of childbearing age more heavily than that of either a younger or older woman, this emphasis on life-cycle isn’t typical of the codes as a whole. Equally, women were sometimes regarded as being more valuable than men and sometimes less.
There is more consistent gendering of injuries, with some categories frequent among the codes: rape or raptus (abduction) of women, touching of a woman, lifting her dress or removing her headdress. There seemed to be a blurring of the line between actual sexual assault and the humiliation of women (and by extension their families). There are also a number of references to pregnant women being attacked. But other than this, there’s very partial coverage of violence against women (and also violence by women).
Alice argued that laws only mentioned women explicitly when the law was changed from the male norm, and that the ‘si quis’ (if anyone) of many lawcodes applied both to male-only offences, and also to both sexes. In her view, homicide laws did almost always mention gender because this act was assessed specifically as a loss to the family. She pointed out the inconsistency on tariffs between codes: were virgins worth more than non-virgins or not? Was abortion worse than battering a pregnant woman?
The differences visible don’t reflect any particular geographical split, and are best seen as somewhat incoherent attempts by lawmakers to rank the seriousness of different offences. In contrast to the coherent hierarchy of status, where the size of fines reflected social positions, the logic of practice revealed by fines concerning women suggest their fundamentally ambiguous position in families, both a valuable asset and a potential source of weakness.
Alice then went on to talk about marriage, pointing out the emphasis in the lawcodes on things going wrong. The ideal was predictability: marriage as a negotiated agreement between equals in which the woman kept her exchange value throughout. This explains the emphasis on the raptor, who abducted a woman, a figure who appears in all the early medieval lawcodes. The codes also discuss the possibility of one party, most often the man, changing his mind before a marriage, and give remedies for this.
Most legislation on divorce was preventing male divorce: the two discussions of female repudiation of their husband have completely different outcomes. A Burgundian woman doing this was to be drowned in mud, while Aethelberht of Kent’s code gave her half her husband’s property. Concerns about men repudiating their wives focused on the attack on the honour of a rejected wife, if she was guilty of no wrongdoing. One particularly interesting point that Alice made was that the right of a husband or father to kill a wife or daughter guilty of ‘adulterium’ (unsanctioned sexual activity) was articulated only in the specific case that she was found committing this within the home: such a violation of boundaries was clearly a particular serious matter. In contrast, the punishment of other forms of adultery by married women were rarely mentioned, and probably left to the decision of the husband. More generally there was strong emphasis on sexual policing of women’s behaviour, with some codes, such as the Visigothic one, particularly obsessed by adultery.
Jinty then gave the final section of the paper, looking at property rights, and pointing out how these were dependent on female lifecycles. The Visigothic code is the only one that talks about sons and daughters inheriting equally. The codes also hint at the extent to which there was conflict within families over property, for example brothers as rivals to sisters. One section of the Lombard code, for example, (Liudprand 145) refers to a dispute over the inheritance of a niece who had died. (This also shows the extent to which the law codes were reactive to specific problems, something more like the equivalent of case law than today’s statutes). The fraught circulation of goods within families is shown by sometimes elaborate provisions about dower and widows.
In conclusion, Jinty and Alice argued that the lawcodes do seem to reflect actual practice (as seen in charters) and that they were responding to real demands. But they also reveal a fundamentally ambivalent view towards law and gender, both supporting women and ensuring they behaved. In the questions afterwards, Alice argued against any trajectory in female status, saying that things didn’t get better or worse for women but stayed about the same. Which of the fundamental tensions about the position of women were expressed in the codes tended to depend on the most high-profile specific cases.
It was a fascinating paper, but left those of us who study early medieval women with a problem ourselves. The lawcodes probably do reflect a consensus view among kings and aristocrats, but this view isn’t internally consistent. There are some very broad generalisations that can be made, but whenever we try and look closer, we’re faced with contradictions that are endemic to the system. Somehow we have to find a way to talk about such patterns without simply ignoring the evidence that doesn’t fit. I’m not sure any of us have yet found the complete answer to this, though Jinty and Alice’s paper seemed to me an excellent start.