Women and the Law

by

Sara T. Damiano

• LAST REVIEWED: 28 July 2021
• LAST MODIFIED: 28 July 2021
• DOI: 10.1093/obo/9780199730414-0350

Introduction

In the early modern Atlantic world, the law conditioned gendered power relations in European and colonial contexts alike. The everyday workings of legal systems yielded a vast archive of legal sources. These include statutes, treatises, petitions, legal instruments, and court, notarial, and probate records. Since emergence of women’s and gender history as vibrant fields of inquiry during the final decades of the 20th century, scholars have mined these and other complementary sources in order to interrogate women’s relationship to the law. Casting c. 1400–1815 as a distinctive period spanning from early colonial encounters to the birth of modern nation-states, these researchers emphasize that overlapping jurisdictions and legal systems shaped early modern women’s statuses and access to recourse. They have traced the ways in which the law structured women’s lives opposing ways: as an instrument of regulation and discipline, and as a source of authority for women within their households and communities. They have additionally analyzed women as legal actors, examining their uses of law and the forms of skill and strategy they demonstrated in the course of such activities. European-descended settlers and officials transported metropolitan legal systems with them to colonial contexts, and such legal systems thus functioned as an instrument of colonialism, affording greater accessibility and protections to white women than to black and indigenous women. Yet African-descended and Native women equally possessed their own understandings of law and justice, and they maneuvered within European-derived legal systems to advance their own interests. This bibliography attends to the major areas of scholarly inquiry on women and the law c. 1400–1815, many of which necessarily overlap. In keeping with recent scholarly trends in Atlantic and early American history, it does so by grouping works thematically. This organizational structure reflects the interconnectedness of the early modern Atlantic world and underscores that the history of women and the law resists straightforward narratives of declension or improvement. By inviting comparisons across regions, a thematic approach clarifies the ways in which specific imperial and local contexts shaped women’s relationship to the law. It also reveals commonalities in the patriarchal character of European-derived legal systems, and the ways in which they functioned similarly in order to create intersecting hierarchies of race, class, and gender. For specific regions, see also the separate Oxford Bibliographies articles Gender in the Caribbean, Gender in Iberian America, and Gender in North America.

General Overviews

It is difficult for any one work to fully summarize women’s relationship to the law, both because of the many legal systems that operated within the early modern Atlantic world, and because diverse groups of women participated in these legal systems in myriad ways. Works within this category therefore suggest the range of women’s interactions with the law in both European and colonial settings. The synthetic essays Brewer 2008 and Snyder and Dayton 2020 survey scholarship on women and the law in British North America. Given the relative dearth of similar synthetic works on women and the law the non-Anglophone Atlantic world, readers seeking an introduction to the field should also consult edited collections and influential monographs. The essays in Desan and Merrick 2009 and Owens and Mangan 2012 suggest topics and themes pursued by scholars of France and the Iberian Atlantic, respectively. The contributions in Tomlins and Mann 2001 and Shepard and Stretton 2019 offer entry points into scholarship on the British Atlantic world. Important single-authored studies on women and the law include Dayton 1995 and Brown 1996 on British North America, Hardwick 2009 on France, and Premo 2017 on the Iberian Atlantic. Each of these studies spans the range of legal matters in which women participated. These works also showcase and intervene key scholarly conversations concerning whether legal systems became increasingly patriarchal between the 16th and 18th centuries. In so doing, they evaluate the extent to which women contributed to or were marginalized from major transformations of the early modern period, including the formation of the states, the standardization and professionalization of law, the commercialization of markets, the development of Enlightenment ideology, and the emergence of new norms of privacy. Premo 2017 additionally exemplifies scholarly attention to women’s legal literacy, while Brown 1996 analyzes the mutual construction of categories of race, class, and gender via the law. On gender and Atlantic history more generally, see the separate Oxford Bibliographies article Gender in the Atlantic World.

• Brewer, Holly. “The Transformation of Domestic Law.” In The Cambridge History of Law in America. Vol. 1, Early America (1580–1815). Edited by Michael Grossberg and Christopher Tomlins, 288–323. Cambridge, UK: Cambridge University Press, 2008.

  This synthetic essay and associated bibliographic essay use the framework of domestic law to link questions surrounding the legal status of wives, children, servants, and slaves in colonial British America and the early United States. Between the 17th and early 19th centuries, jurists’ increased emphasis on common law enhanced the authority of masters over their dependents.

• Brown, Kathleen M. Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia. Chapel Hill: University of North Carolina Press, 1996.

  Brown revises classic narratives of Virginia’s development in order to emphasize intersections between gender, race, and class. English colonists invoked gender, a key element of social relations, in order to define and stabilize racial and class hierarchies. This influential study is based on extensive analysis of laws and court records, and it discusses the many kinds of court cases in which women participated.

• Dayton, Cornelia Hughes. Women before the Bar: Gender, Law, and Society in Connecticut, 1639–1789. Chapel Hill: University of North Carolina Press, 1995.

  Dayton argues that Puritan theology contributed to a favorable legal climate for women in early Connecticut, and that intertwined processes of class formation and increasing adherence to English law subsequently increased the legal system’s patriarchal character. Based on extensive qualitative and quantitative analysis of court records concerning debt litigation, divorce, sex crimes, and slander.

• Desan, Suzanne, and Jeffrey Merrick. Family, Gender, and Law in Early Modern France. University Park: Pennsylvania State University Press, 2009.

  Emphasizing the ways in which individuals and households maneuvered within and shaped legal regimes, this edited collection provides a useful entry point to the scholarship on families and state formation in early modern France.

• Hardwick, Julie. Family Business: Litigation and the Political Economies of Daily Life in Early Modern France. Oxford: Oxford University Press, 2009.

  DOI: 10.1093/acprof:oso/9780199558070.001.0001

  The dynamic interplay between households, law, and litigation was central to daily life and social relations in the early modern French cities of Nice and Lyon. Hardwick emphasizes the political and economic importance of marriage and by extension, women’s extensive involvement in the workings of local courts. Topics include spousal conflict, violence, and borrowing and lending.

• Owens, Sarah E., and Jane E. Mangan, eds. Women of the Iberian Atlantic. Baton Rouge: Louisiana State University Press, 2012.

  This collection includes essays on African, European, and indigenous women in the Iberian Atlantic world. Many of its contributions utilize legal sources or attend to the ways in which the law conditioned gendered power relations.

• Premo, Bianca. The Enlightenment on Trial: Ordinary Litigants and Colonialism in the Spanish Empire. New York: Oxford University Press, 2017.

  DOI: 10.1093/acprof:oso/9780190638726.001.0001

  In Peru, Mexico, and Spain, litigants shaped and articulated Enlightenment ideologies through their arguments in civil suits. Women made strategic and extensive use of the law in familial and marital conflicts, and cases involving women contributed to the overall rise in litigation in 18th-century Spanish America.

• Shepard, Alexandra, and Tim Stretton, eds. Special Issue: Women Negotiating the Boundaries of Justice in Britain, 1300–1700. Journal of British Studies 58.4 (October 2019).

  This special issue includes articles on many aspects of women’s participation in the courts and legal system of early modern Britain. Topics include marriage law and women’s legal skills and agency.

• Snyder, Terri L., and Cornelia Hughes Dayton. “Women and the Law in Early America.” In A Companion to American Women’s History. 2d ed. Edited by Nancy Hewitt and Anne Valk, 55–72. Hoboken, NJ: Wiley-Blackwell, 2020.

  A synthetic essay surveying recent scholarship on women and the law.

• Tomlins, Christopher L., and Bruce H. Mann, eds. The Many Legalities of Early America. Chapel Hill: University of North Carolina Press, 2001.

  Emphasizing the interplay between law and social practices in British North America, this collection contains many essays concerning women, gender, and patriarchal authority.