Bad Girls in the Middle Ages: Gender, Law, and German Literature

Throughout the long time period of the Middle Ages, legal authority regarded women as "girls." Officially, adult women were not able to perform as judges or advocates or in any official capacity in a court of law. Nor were they able to bring suit themselves except in special circumstances such as rape cases. Rather, they were required to be represented by another person before the law which controlled key aspects of their lives. This other person might be a father if the woman were young and unmarried, or a husband if she were a wife, or a close male relative if neither husband nor father were living. One measure of women's progress in the development of medieval law is the increasing control she had over her choice of guardian and the recourse she had if he were unfair or unjust. ¹ Yet this principle of representation, called Munt, Muntschaft, or mundium in German and gender-based guardianship in English, was never eliminated. It was reaffirmed with new vigor in the Early Modern period. ² Because of it adult women had the same relationship to the institutions and procedures of law as did children or incompetent persons. Never were they on the same footing as adult males. They were, at least in legal theory, perpetually girls. ³

What reasons were given for these gendered relations in the law? Why did people find them so necessary? Scholars have offered two kinds of explanations. First there is the conundrum of women's conflicted status in earlier Germanic society. According to Tacitus, women were esteemed by the ancient Germans, and although his account is idealistic and tendentious since he was pointing up the decadence of his Roman readers by way of contrast, it is "fully confirmed in its essentials by the poetry, religion, and history of the early Germans." ⁴ But for some reason—and here is the conundrum—this status, seemingly so secure in general, did not extend to women's legal position. It appears that gender-based guardianship or mundium was in place from the earliest recorded times. ⁵

The reason scholars give for this split in Germanic culture regarding the position of women is that despite Walkyrie imagery, women were thought to be incapable of bearing arms due to physical weakness. Germanic society as reflected in the folk laws that prevailed until the early 1100s was composed of arms-bearing males. Women were "incapable of serving in the army, and therefore also in the courts—for he who would participate in the popular court must be able to bear arms, since the procedural context might at any moment be transformed into warlike combat," in an ordeal for example. ⁶

In the High Middle Ages legal procedures changed dramatically. The ordeal was replaced by the inquest although the ordeal had a long and interesting afterlife in Arthurian literature in which the duel between knights frequently had the character of a trial, often in explicitly legal narrative frameworks. ⁷ But in legal process, even when fighting with weapons was replaced by fighting with words, women were still required to have representation through guardians. The concept of gender-based guardianship was transformed into a form of protection required by legal institutions because women were thought to be too ignorant to approach the law on their own. ⁸ This protectionism casts an interesting sidelight on the growing complexity of the law. The assumption of increasing complexity suggests questions about men's relationship to the law and legal institutions: how long were non-specialist laymen held to be conversant in the law? And when did the services of legal professionals become necessary in trial settings and/or in more routine legal matters for most men? But with respect to women, the formal demand that women's relationship to law be mediated by a guardian was simply strengthened by the new grounds of imputed ignorance.

These...