Married Women and the Law: Legal Fiction and Women’s Agency in England, America, and Northwestern Europe

[Errata]

These volumes demonstrate how one of the major themes of women’s history — the nature and scope of patriarchal authority — cannot be understood through legal theories about how things should be. Social, economic, and political contexts mediated limitations on women and generated significant variations in the form or extent of those limitations. Regional and comparative studies have broken down the apparently universal nature of patriarchy and shown differences between countries and within communities. Although attention to the contextualized manifestations of women’s agency reveals that some women had more options than the law prescribed, it also has shattered ideas of “golden ages” by demonstrating how underlying structures of subordination persisted even as women’s options changed, with the weakening of women’s limitations often accompanied by other, new restrictions or serving the interests of politically or economically important groups of men.

Legal history and the use of legal records in other fields is well-suited to exploring these contradictions of theory and practice. Judicial systems with their hierarchies of courts and jurisdictions represent the coexistence of national and local levels, while theorists and justices appealed to supposedly universal principles to deal with immediate situations. In addition the court often was the forum for different members of society to clash over what was right and just. Furthermore, legal records are used to explore non-legal topics including attitudes to marriage and family, gender constructions, and women’s work; for the Middle Ages, legal records are often the only source available. Legal history and women’s history thus often reflect each other: more recent scholarship uses litigation to investigate agency or it turns to narrative sources to deconstruct the discourse of laws and rights. Using legal sources to study women often requires innovative methods, whether these involve balancing close readings with quantitative analysis, employing literary sources, or comparing jurisdictions. In all of this we are reaping the benefits of increased digitization.

Perhaps the most significant factor in shaping research into the history of women in the Anglo-American tradition is coverture — the legal fiction in Common Law that a wife’s legal identity was subsumed into (or covered by) that of her husband. In theory, as a femme coverte de baron, a wife could not own chattels, administer property, conduct business, contract debts, or use the courts in her own person.¹ The theoretical ubiquity of coverture requires every historian of women to grapple with it, directly or indirectly. The supposed suppression of the wife’s legal identity makes it difficult to recover their economic activities, while the fact that widows and never-married women did not suffer the same restrictions forces historians to make a choice regarding whom to study, and how.² Views of coverture influence or are influenced by other attitudes about women in the past, such as the debates about a “golden age” for women.³ But coverture was a Common Law concept and thus other courts did not necessarily follow or apply it in the same ways, and even in Common Law, coverture could be circumvented.⁴ As with any legal issue, the courts’ interpretation and application of coverture varied and ordinary people had their own ideas of what was right. For these reasons, much remains to be discovered regarding perceptions and experiences of coverture: how did women circumvent or manipulate it? What did coverture offer to plaintiffs and defendants in the context of litigation? How did justices reconcile coverture with other legal or political needs? And crucially, how and why did it change?

The contributors to these volumes tackle these questions while...