Yeshiva University, Cardozo School of Law LARC @ Cardozo Law Articles Faculty 1990 Feminism Historicized: Medieval Misogynist Stereotypes in ContemporaryFeminist Jurisprudence Jeanne L. Schroeder Benjamin N. Cardozo School of Law, [email protected] Follow this and additional works at: https://larc.cardozo.yu.edu/faculty-articles Part of the Law Commons Recommended Citation Jeanne L. Schroeder, Feminism Historicized: Medieval Misogynist Stereotypes in ContemporaryFeminist Jurisprudence, 75 Iowa Law Review 1135 (1990). Available at: https://larc.cardozo.yu.edu/faculty-articles/391 This Article is brought to you for free and open access by the Faculty at LARC @ Cardozo Law. It has been accepted for inclusion in Articles by an authorized administrator of LARC @ Cardozo Law. For more information, please contact [email protected], [email protected]. Feminism Historicized: Medieval Misogynist Stereotypes in Contemporary Feminist Jurisprudence Jeanne L. Schroeder* Table of Contents I. Introduction ...................................... 1136 II. Contemporary "Essentialist" Feminism .................. 1137 A. The Ahistorical and Conservative Nature of Contemporary Feminist Theories .................. 1137 B. Robin West's Feminist Dichotomy ..........' ........ 1147 C. How Medieval Men Defined Medieval Women ........ 1151 III. The Development of the Law of Marriage ............... 1160 A. Consent in Marriage and Rape .................... 1160 B. Individualist Legal Reform in the Service of Women ................................... 1162 C. Secular Theory of Marriage and Rape .............. 1165 1. Marriage .................................. 1165 2. The Formal Prerequisites ...................... 1166 3. Divorce ................................... 1167 4. The Role of Individual Consent ................. 1169 5. Rape ...................................... 1170 6. The Role of the Community ................... 1171 D. Church Theory of Marriage and Rape .............. 1173 1. Development of a Theory of Marriage ............ 1173 2. Rape ...................................... 1177 E. Rationales for Canon Marriage Law ................ 1180 I. Personal Sin ............................... 1180 2. Privacy ........... , ........................ 1181 3. Sacramentalization ........................... 1183 4. Corruption ................................ 1184 F. Church versus Nobility .......................... 1185 G. Conclusions .................................. 1186 IV. Contemporary Radical Feminism and Medieval Virginal Feminism ................................. 1187 A. West's Radical Feminism ......................... 1187 B. Medieval Theories of Sex and Woman .............. 1190 I. Sex as Violation and Pollution .................. 1190 2. The Equivalence of Woman and Sex ............. 1191 *Associate Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. A.B. 1975, Williams College; J.D. 1978, Stanford University. I would like to thank David Gray Carlson, Drucilla Cornell, Richard Friedman,'Mary Ann Glendon, A.W.B. Simpson, John Stick, Peter Tillers, and Charles Yablon for their friendship and encouragement in connection with this article. 1135 1136 75 IOWA LAW REVIEW 1135 [1990] 3. Ritual Pollution ............................. 1193 4. The Conjugal Debt .......................... 1195 5. Changing Perceptions . , ....................... 1199 6; Modern Parallels ............................ 1200 C. Virginal Feminism .............................. 1201 D. Lessons? ..................................... 1213 V. Conclusion ............... , ....................... 1214 I. INTRODUCTION When I first read Robin West's essay Jurisprudence and Gender, 1 I felt within me an undeniable resonance. Yet the "radical" theories she de­ scribed did not accurately represent my own experiences or my observa­ tions of the men and women that I knew. Was this, I wondered, my recognition of a dimly perceived personal truth that I was trying to repress? It was only after rereading certain historical works in preparation for a book review2 that I realized why these theories seemed so elemental to me. They were eerily reminiscent of the theories of sexuality and female personality of my Roman Catholic upbringing. Here were the voices of Jerome, Augustine, Thomas Aquinas, and the Church Fathers and Doctors I had read as a teenager while trying to understand the vulgarized versions taught to me by local priests and nuns. My experience was not the recognition of a dimly perceived truth, but the imperfect recollection of lies told to me in my childhood, which I since have consciously tried to forget. In the Middle Ages,3 a version of certain values which West recognizes as uniquely feminine was experienced by men as uniquely masculine. History shows that if a society reevaluates characteristics formerly labelled "feminine," men are capable of adopting these values and relabelling them "masculine." From the view of patriarchy, the formerly "masculine" characteristics-having been deprivileged-must, by definition, be rela­ belled "feminine." Women in a sense "bec~me" the opposite of what they once "were," and patriarchy is perpetuated. Patriarchy does not depend for its existence on any one particular conception of masculine or feminine 1. West,Jurisprudence and Gender, 55 U. Chi. L. Rev. 1 (1988). For this•article I have for my convenience adopted West's dichotomy of cultural feminism and radical feminism. See id. at 3; infra text accompanying notes 28-35. I realize that, like most attempts to categorize, the cultural/radical dichotomy results in oversimplification. In some cases, it may force misstatement of views to fit its categories, as well as ignore those theorists who do not fit into either category, including Ruth Colker, Drucilla Cornell, Angela Harris, and Joan Williams. It may also incorrectly suggest that feminist jurisprudence has degenerated into rigid, competing schools. Despite these limitations, I find this dichotomy to be a useful analytical tool for the task I wish to undertake. 2. Schroeder, History's Challenge to Feminism, 88 Mich. L. Rev. 1889 (1990). 3. I refer to the period approximately from f050 through 1250 as the "high Middle Ages," the centuries preceding that period as the "early Middle Ages," and the period following it, through about 1500, as the "late Middle Ages." When referring to Italy, I sometimes refer to the latter portion of the high Middle Ages as the Renaissance. Although the labeling of time periods is controversial among historians, my characterization is not uncommon. See, e.g., J.W. Thomson, Economic and Social History of Europe in the Later, Middle Ages (1300-1530) (1960); J. LaMonte, The World of the Middle Ages (1949). As with the cultural/radical dichotomy, I have adopted this historic periodization only for analytical convenience. FEMINISM HISTORIC/ZED 1137 nature. Rather, it has in the past existed and continues to exist in different societies accepting differing definitions of these natures. In this essay I argue that any sophisticated theory ofjurisprudence and gender requires not only inspection and analysis of contemporary society and its stereotypes of the self, but also a recognition that contemporary stereotypes are culturally contingent. Women simply must define them­ selves, and not merely accept men's definitions of them as the opposite or complement of men. A feminism historicized embraces this recognition as a step toward feminine freedom_ and a just jurisprudence for both sexes. II. CONTEMPORARY "Es~"'.NTIALIST"4 FEMINISM A. The Ahistorical and Conservative Nature of Contemporary Feminist Theories The contemporary feminist theories described by Robin West5 are ahistorical and surprisingly conservative in their explanation of both feminine and masculine nature and the bases for contemporary sexual law. By ahistorical, I mean two things. First, these theories are based on the sense of self personally experienced by late twentieth-century American white professional-class individuals, and do not take into account the very different selves experienced by people living in other cultures and other historical periods. This sense of the "self'' -the mediating experience of individuality and community-has been perceived differently in past societies, and to a large extent may be culturally determined. To derive essentialist theories of human nature and gender from only our own personal experience and the experiences of our contemporary intellectual neighbors is an act of cultural hubris, doomed to error and historic triviality. Second, insofar as it accepts modern cultural descriptions of person­ ality as universal, modern feminist jurisprudence fails to recognize the historical roots of the prejudices on which it is based. Indeed, if all we had to go by were our own experiences, the distinction between universal and 4. By "essentialist" I am referring to the notion that a single, universal women's experience is isolated without reference to the realities of our experience-such as race, class, sexual orientation, and particularly, our shared past as reflected in history. Angela Harris makes a related argument concerning essentialism and the contingent nature of the "self' in Harris, Race and Ess.entialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 585 (1990). Unfortunately, charges of essentialism have become a standard feminist insult. Naomi Schor recently has characterized such charges as a form of "intellectual terrorism" used to silence or excommunicate rivals. Schor, This Essentialism