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In this essay I argue that using gender as a category of analysis enhances legal history and that gender historians should take legal history seriously. There are about as many facets to law and legal action as there are to social reality. I focus on two specific aspects of legal history, scholarship on free labor and contract and scholarship on domestic violence law, primarily the notion of crimes of passion.[1] This essay has two main parts. The first part emphasizes the importance of gender analysis for legal history. Scholarship on free labor shows a gendered component to social, political, and economic phenomena which are often considered without a gendered analysis. Scholarship on domestic violence shows that there are phenomena which legal historians simply can not understand without addressing gender. This essay’s second section emphasizes law’s importance for gender historians. Studying law supports two points common among scholars of gender: gender systems extend beyond the ostensibly private realm, structuring public realms of government and economy, and gender is a contested power relationship. Finally, scholarship on domestic violence shows law’s role in how gender relations are produced and are contested. I close with reflections on the limits of legal history.

Gendering Legal History

In Gender and the Politics of History, Joan Scott argued that historicizing gender would “yield a history that will provide new perspectives on old questions [and] redefine the old questions in new terms.” Taking gender seriously revises all of our historical narratives.[2] Gendered legal history changes our understanding of nineteenth century capitalism in the United States. Even gender historians who do not make capitalism a central or explicit category still make a contribution by gendering legal ideas – freedom, contract, and labor – central to capitalist society. Much of 19th century and early 20th century law and labor movements in the United States were shaped by an idea that waged labor was free. Workers, employers, judges, and politicians interpreted this idea differently but shared a common view that free laborers were rational and independent people who knew what they were doing when they entered into an employment contract, and did so willingly.

Barbara Welke argues late 19th century U.S. courts used an idea of freedom which implied an ideal type of the free man, one “constructed out of the understanding of the relationship among men’s status as citizens, their bodies, and their labor. Free men, by definition, were autonomous, self-controlling, energetic actors in charge of their own activities and choices; they were, in a word, independent.”[3] Women, at law and in much of American culture, were not free.

Patricia Reeve argues that 19th century U.S. free labor ideology had as one of its constitutive elements a gendered order of corporeal perception or knowledge, which informed attitudes toward industrial accidents. A free man had control over his own body and that of his spouse. Workplace accidents threatened men’s sense of themselves as free and as men by taking away their sense of bodily control. Courts deployed a different sense of masculinity and freedom, viewing loss of control of one’s body as a feminine condition, implying that injured men were insufficiently masculine.[4]

Earlier Marxist-influenced legal historians often understood capitalism to include the extension of formally equal contract relationships instead of status relationships.[5] Looking at gender challenges this idea. John Fabian Witt has remarked that “[n]oncontractual status relationships,” that is, relationships understood at law as involving dependence rather than equality, “characterized the relations of husband and wife” throughout the 19th century.[6] Nancy Cott shows that legal decisions and treatises routinely thought of marriage as a status relationship akin to slavery. This legal definition of marriage as a status relationship did not change during the growth of capitalism.[7]

Amy Dru Stanley argues after the U.S. Civil War the Freedmen’s Bureau pressed former slaves to marry, thereby pushing African-American women into a status relationship as subordinate to their husbands. Freedmen’s Bureau administrators and lawmakers saw extending freedmen’s power over freedwomen as part of cultivating African-Americans for participation in a free society. Many freedmen saw control over their wives as a hallmark of their new status.[8] Stanley argues key to the extension of waged labor in the U.S., and of the view that conflated ‘free labor’ and ‘waged labor’, was the idea that wives were in a dependent status relationship and not an equal contract relationship with their wage-earning husbands.

Riva Siegel argues that 19th century U.S. feminists fought in court to win control over money and labor for women. They fought for women’s control of wages and property, a share of husbands’ property in divorce cases, and women’s control of their household labor. Nineteenth century feminists did not succeed in most aspects of these courtroom struggles. The creation and consolidation of capitalism preserved and even extended women’s status as dependent.[9] Implied in this is the idea that women’s unwaged housework is labor productive for capitalism, and that law regulates this productivity.[10]

Like the history of capitalism, the history of conflicts around and within marriage is useful for discussing the role of gender analysis in legal history. This area of inquiry demonstrates that legal historians cannot write accurate history without a grasp of gender.[11] Conflicts between family members derived from struggles over the standards for the proper behavior of men and women in relation to each other. These standards also served as a resource appealed to by all sides in family conflict cases. In courtrooms plaintiffs and victims, even dead ones, would face a sort of trial alongside the defendant. Victims’ proper adherence to gender norms was at issue, and was often decisive in courts’ determinations of guilt and innocence.

Eliza Ferguson has recently published several articles investigating courts’ handling of domestic violence in the late 19th century. In her article “Judicial Authority and Popular Justice” she argues that juries subverted legislators’ and magistrates’ intentions by applying a notion of crimes of passion and a notion of just retribution which ran expressly counter to the letter of the law. In these crimes, defendants argued that they were overcome with an uncontrollable passion upon finding out about their partners’ infidelities, and so could not help themselves when they attacked. Juries routinely acquitted people who made passion a primary plank in their defense. Ferguson mentions in passing that women who murdered men were more likely to be acquitted than men who murdered women. Ferguson does not explain or inquire into this fact. Her article does not discuss gender at all. As a result, she limits the scope of her own important insight that juries served as an avenue for the populace to supplant legislators’ and judges’ notions of justice with a different standard by not providing much of the details on that specifics of jurors’ visions of justice. Her research found a difference between women’s and men’s acquittal rates, which suggests that popular justice appealed to gender norms which shaped the outcomes for defendants.[12]

Kristin Ruggiero has written about similar dynamics in crimes of passion in late 19th century Argentina, though Argentine law included formal elements paralleling the informal/popular justice that Ferguson found in France. Argentine law included a doctrine of “justifiable pain” which held that under some circumstances otherwise reasonable people would understandably lose their reasoning capacity and perform acts which they were not responsible for, however regrettable these actions may have been. The law explicitly included men who found out their wives had committed adultery as an example.[13] Ruggiero notes that while nothing in the law said that the justifiable pain doctrine excused murder, judges routinely excused men for killing their wives based on allegations (proof was not required) of adultery.[14] Women who murdered their husbands rarely succeeded in claiming justifiable pain as a defense.

Ginger Frost discusses a case of a crime of passion in early twentieth century England. [15] In 1902 Kitty Byron’s lover told her he didn’t want to live with her anymore and did not intend to marry her. Byron asked him to meet her in a public place then stabbed him to death in front of a group of people. In her trial she pled that she had been so provoked by her lover’s actions that she had lost her capacity to reason. This was essentially the same argument made in Ferguson’s French cases dealing with crimes of passion. Byron’s defense centered on two key elements: attacking her lover’s masculinity and playing on sexist views of women. Byron and other witnesses testified that her lover had beaten her and not provided for her financially, forcing her to support him. She also played upon then contemporary views of women as easily emotionally overwhelmed. In the end, Byron was found guilty but served only six years for her crime.

Cases of domestic violence and conflict between partners demonstrate one area where legal history simply cannot understand the past without a gendered analysis.

Attention to these cases also changes our understanding what courts did. Understood from a gendered perspective, it becomes clear that courtroom proceedings could be trial for all parties involved, not only the defendants. In cases of domestic violence in the U.S., France, England, and across Latin America, perpetrators and victims of violence were judged according to how much they approximated to the ideal behavior for their gender.[16]

In Gender and the Politics of History Joan Scott suggested that if gender were taken seriously historians would come to see “all unequal relationships as somehow ‘political’ because involving unequal distributions of power.” This in turn “would end such seeming dichotomies as state and family, public and private.”[17] By considering gender and law in tandem, it becomes clear that government and law regulated gender norms and behaviors. Michael Grossberg has referred to the law of domestic relations as a form of governance over families.[18] Legal history helps make clear the mutual implication of public and private, state and family. Courts sometimes served as regulators of people’s adherence to gender norms, one piece in the states’ governance of gender.[19]

Law for Gender Historians

In Gender and the Politics of History, Joan Scott criticized then-recent feminist political history. While she saw this history as a productive step in thinking about gender historically, she argued that it still treated politics as a narrowly defined category, implying that the state is the center of politics. Scott argued that this narrow definition emphasized male actors over women, “by neglecting female agency and implicitly diminishing the historical importance of personal and social life.”[20]

Scott’s criticism of political history might seem to apply to legal history. Legal history does take an element of the state, namely law, as its object. As I have already suggested in discussing legal history and domestic violence, legal history shows the role of law in governing gender and family relationships. None of this means, however, that legal history neglects female agency or diminishes the historical importance of personal and social life. To the contrary, legal history provides a window onto women’s agency in two important ways. Law allowed women room to maneuver in immediate conflict they found themselves in. Furthermore, in court individual women were sometimes able to make use of the very gender hierarchies which constrained them in order to temporarily gain more control over their lives.

Grossberg has termed judges’ power in the courtroom and by extension over people’s live as “judicial patriarchy,” referring to how judges regulate family and gender behaviors.[21] Steve Stern argues that women in late 18th and early 19th century Mexico pursued “social strategies” that “set up male-male rivalries and hierarchies as a check on the power” of the men in their lives. Stern refers to this as “pluralization of patriarchs.” Stern focuses primarily on informal power and social networks, but he includes women’s resort to the formal legal system in this strategy. [22]

Pairing Grossberg and Stern’s respective formulations, women used judicial patriarchy in their strategic pluralization of authority in the attempt to have more control over their own lives. This is true of the women in the domestic violence cases I already discussed. Similarly, Arlene Diaz argues that women in 19th century Venezuela argued in court that marriage did not just amount to men’s power over women. Marriage, these women argued, was mutually obligatory. According to this vision of marriage, men were obligated to support and not abuse their wives. When husbands did not live up to their end of the bargain, women argued, wives had a right not to follow their husbands’ authority. In her suit for divorce, Francisca Lameda de Vazquez argued that in marrying her, her husband “contracted with me and with society” to be a good husband and father. Since her husband’s failure to provide for her and her children meant he had not honored his end of the bargain, she argued, she should be released from her status as his wife.[23] Diaz suggests that women like Lameda de Vazquez “delegitimiz[ed] the superior legal position of men by demonstrating that (…) their male partners did not fulfill their duties.”[24]

Women’s use of law and courts was not restricted to matters of marriage and the home. In nineteenth century Britain, courts regularly appealed to a legal idea of free and informed contract to find against workers who sued their employers over workplace injuries. A worker who got hurt on the job was basically presumed at law to have known the risks ahead of time. Courts essentially held that simply by the act of accepting a job workers waived any right to legal action for injury while at work. Injured women workers, however, had an easier time winning their suits because courts tended to think that women did not have the same reasoning capacity as men and so could not be expected to be as aware as men of the dangers in their workplace. Women’s injury suits also appealed to the masculinity of male judges and juries, suggesting that they needed to live up their manly duty to protect women, an appeal which implied a criticism of male employers for not being sufficiently paternalistic.[25]

The extent to which laws served women’s interests should not be over-estimated. To return again to formulations drawn from Stern and by Grossberg, male dominance remained in place in women’s use of judicial patriarchy in the tactic of pluraliziation of patriarchal authority. More importantly, through courts women turned positions in a gender hierarchy into the basis for a claim with which to force men to act in ways that they did not wish. This does not change the fact of male dominance, but it does change our understanding of women’s agency within the context of male dominance. Through law women could sometimes exert power back upon men using the very ideas and norms produced by and supportive of male dominance.

Legal history offers a window into a second kind of agency for women. Not only could individual women use law to exert power upon men and to turn positions within gender hierarchy into the basis of claims, women could actively change law in ways that affected other women and men as well. In other words, women’s lawsuits allowed them a measure of lawmaking power which other women could draw upon in the future.

Barbara Welke argues that when women sued for injuries incurred as railway passengers in the late 19th and early 20th century United States they often won in ways that men could not.[26] After women won their lawsuits, men began to appeal to the same standards in later lawsuits. Women’s lawsuits created a new and safer environment for all railway passengers. Slave women similarly helped establish a legal precedent in colonial Cuba. Slaves sued to force their masters to allow the slaves to purchase their freedom. A practice and law called coartacion allowed slaves to pay a sort of down payment on their future manumission. Upon doing so, the price of their freedom became non-negotiable: masters could not raise the price. Over time, enslaved women began to use this in the attempt to legally expand their freedom, arguing that since they had paid for part of their freedom they were partially free. While there were limits to how much freedom slaves could win, one legal victory built on another, establishing a weight of precedent.[27] In a sense, through their legal action, women in many times and societies pushed forward a partial rewriting of the law into terms somewhat more favorable to women in similar circumstances.

In this essay I have surveyed work by legal historians in the attempt to demonstrate that legal history is better history when it uses gender as a category of analysis. Not using gender analysis in legal history is something like what I imagine it is like to be color-blind – a good many things will still make some sense, many things will make less sense, and some things will be incomprehensible altogether. I have argued that gender analysis in legal history demonstrates that legal and economic institutions as well as ideologies had gendered causes and gendered effects which we would not otherwise be aware of. I have also argued that we can not begin to understand domestic violence law without a gender analysis.

I have further sought to demonstrate that legal history can enrich gender history. I have tried to show that law has been a major factor in producing and maintaining gender relations. At the same time, recourse to law has been an important way in which women have exercised agency. Going to court has allowed women to contest or at least to navigate gendered power relations, and women have sometimes remade law through their legal actions. Neither law’s contribution to forms of gendered power nor legal forms of agency within and against gender hierarchy can be understood without engaging in legal history.

Limits of Legal History

I close this essay with a coda on potential problems and limits in using legal history to understand gender and family history. Dana Paton writes that “[a]ttempts by subordinate groups to make state power work in their favor have been common in many situations of unequal power.” This is one way to describe situations where women sought to use courts in a power struggle with men in their lives. Paton notes that some historians have argued that “use of the state legal system locks people into accepting the inequalities of the system of power (…) while others argue that such practices indicate nothing about the beliefs of the people who adopt them.”[28] Put more simply, it is very hard to tell if utterances made in a courtroom are sincere or are calculating. When women in court appeal to gender norms which devalue women, it may be that they believe in these norms or that they only appeal to these norms to get what they want. As such, it is very difficult to know what courtroom speech means about gender beyond the courtroom.

Legal sources primarily tell us that people used law in their lives, and how they did so. People resort to law because of problems but legal sources do not tell us about the variety of problems people encounter in their lives which do not result in legal proceedings nor do they tell us about the parts of people’s lives when they do not have a problem. This is particularly important for understanding gender and family. Legal history shows us power relations and conflict in gender and families, but may cause us to overestimate these problems. We must be very careful about generalizing from conflicts that led to legal proceedings to other conflicts or to other people’s lives.

While I have argued that legal history helps make clear the role of law and the state in gender and family relationships, the scope of this role is unclear and we must avoid painting a monolithic picture of the state and law.. Law regulated behavior in some case and people associated with the state had an interest in doing so. On the other hand, law changes and judges disagree. Extrapolations from the decisions of one judge to the attitude of everyone involved in government are likely to be specious. In addition, it is unclear what impact legal proceedings had on people who never ended up in court. Without proof that a trial decision informed the behavior of other people we cannot know how far the arm of law and the state actually reached. It is very easy to overestimate this reach.

Legal history sources, at least trial records, result from mediating influences by institutional actors whose own dynamics are not always clear. For example, when a litigant speaks in a courtroom, he or she may well have been coached ahead of time by his or her lawyer. This type of influence is difficult if not impossible to discern in a source. This is another reason to be careful in extrapolating from courtroom utterances to attitudes and life outside the courtroom.

To draw conclusions from legal sources we need corroboration from other sources and methods. Without knowing how representative or exceptional a case is compared to other cases we must be careful what conclusions we draw.

The non-representative nature of legal sources is compounded by archival practices. Generally speaking, the more important a legal institution, the better its record-keeping. For example, the archives of the U.S. Supreme Court are better maintained than those of various State Supreme Courts, which are better maintained than district and local courts. The cases in the better maintained archives, however, are the most exceptional cases because more important legal institutions deal with more complicated and controversial – which is to say, exceptional – cases.

Clearly legal history has its limits. I hope I have shown some of its strengths in this essay, particularly when it includes gender analysis.

Bibliography

Batlan, Felice.“Engendering Legal History,” Law & Social Inquiry, 30 (2005): 823-851.

Bronstein, Jamie L. Caught in the Machinery: Workplace Accidents and Injured Workers in Nineteenth-Century Britain. Stanford: Stanford University Press 2008.

Cott, Nancy. Public Vows: A History of Marriage and the Nation. Cambridge: Harvard University Press, 2000.

de la Fuente, Alejandro. “Slaves and the Creation of Legal Rights in Cuba: Coartacion and Papel.” Hispanic American Historical Review 87 (2007): 659-692.

Diaz, Arlene J. Female Citizens, Patriarchs, and the Law in Venezuela, 1786-1904. Lincoln: University of Nebraska Press, 2004.

Ferguson, Eliza. “Domestic Violence By Another Name: Crimes of Passion in Fin-de-Siecle Paris,” Journal of Women’s History Vol. 19 No. 4 (2007): 12-34.

Frost, Ginger. “’She is but a Woman’: Kitty Byron and the English Edwardian Criminal Justice System,” Gender & History. Vol. 16 No. 3 (November, 2004): 538 – 560.

Grossberg, Michael. Governing the Hearth: Law and the Family in Nineteenth Century America. Chapel Hill: University of North Carolina Press, 1985.

Paton, Diana, No Bond But The Law: Punishment, Race, and Gender in Jamaican State Formation, 1780-1870. Durham: Duke University Press, 2004.

Reeve, Patricia. “Cultural and Legal Representations of Imperiled Workers and Their Political Significance, Massachusetts (1842-1910),” Unpublished dissertation, University of Massachusetts, 2007.

Ruggiero, Kristin. Modernity in the Flesh: Medicine, Law, and Society in Turn-of-the-Century Argentina. Stanford: Stanford University Press, 2004.

Scott, Joan Wallach. Gender and the Politics of History. New York: Columbia University Press, 1988.

Siegel, Riva. “Home as Work: The First Woman’s Rights Claims concerning Wives’ Household Labor, 1850-1880,” Yale Law Journal 103 (1994): 1073-1217

Stanley, Amy Dru. From Bondage to Contract: Wage Labor, Marriage, and the Market in the Era of Slave Emanipation. Cambridge: Cambridge University Press, 1998.

Stern, Steve J. The Secret History of Gender: Women, Men, and Power in Late Colonial

Mexico. Chapel Hill: University of North Carolina Press, 1995.

Welke, Barbara Young. Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920. New York: Cambridge University Press, 2001.

Witt, John Fabian. The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law. Cambridge: Harvard University Press 2004.

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[1] Eliza Ferguson has suggested that the term domestic violence is somewhat anachronistic for many contexts. I use the term in this essay primarily for the sake of brevity. By the term I mean conflicts between men and women who were often but not always married, conflicts that led to criminal proceedings. Eliza Ferguson “Domestic Violence By Another Name: Crimes of Passion in Fin-de-Siecle Paris,” Journal of Women’s History Vol. 19 No. 4 (2007): 12.

[2] Joan Wallach Scott, Gender and the Politics of History (New York: Columbia University Press, 1988), 50. Scott also argued that analysis of gender would change basic epistemological/conceptual building blocks of history, resulting in “a study of processes, not of origins, of multiple rather than single causes, of rhetoric or of discourse rather than ideology or consciousness.” (4.) I would argue that gender analysis has not caused this sort of epistemological change in legal history, because that change was already happening in legal history when scholars began to use gender analysis. Legal historians influenced by the intellectual trend called Critical Legal Studies had already arrived at a conceptual framework similar to what Scott described, though with unfortunately little engagement with gender. Felice Batlan recently suggested that gendered legal history is a subset of critical legal history, because gendered legal history has qualities similar to critical legal history. This seem to me to overlook important differences. Critical legal historians tend to engage with literature on economy, capitalism, and Marxism. Gender historians in legal history tend to be influenced by and in dialog with work in women’s and gender history outside legal history. Some historians do engage with all of these concerns but just as some critical legal history is not gender history not all gendered legal history is critical legal history. See Robert W. Gordon, “Critical Legal Histories,” Stanford Law Review, 36 (January 1984): 57-125; Felice Batlan, “Engendering Legal History,” Law & Social Inquiry, 30 (2005): 823-851.

[3] Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920, (New York: Cambridge University Press, 2001), 44.

[4] Patricia Reeve, “Cultural and Legal Representations of Imperiled Workers and Their Political Significance, Massachusetts (1842-1910),” Unpublished dissertation, University of Massachusetts, 2007. On free labor more generally See Stanley L. Engerman, editor, Terms of Labor: Slavery, Serfdom, and Free Labor, (Stanford: Stanford University Press, 1999), 2-23. Historians do not appear to share a common periodization of the decline of free labor. The free labor ideal within the labor movement differed from the free labor ideal at law. Lary May argues that a version of free labor ideology, labor republicanism, shaped the U.S. left through the 1930s, well after the idea had declined in law. Labor and working class historians tend to focus on free labor as an ideology among American workers. See for example Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War, (New York: Oxford University Press, 1995). Lary May, The Big Tomorrow: Hollywood and the Politics of the American Way, (Chicago: University of Chicago Press, 2000). Labor law scholars tend to focus on free labor as an ideology embodied in law and used against workers. Labor historians who pay attention to gender have noted note that the free labor ideology within the working class was predominantly a masculine ideology. See for example Alice Kessler-Harris, “Law and a Living: The Gendered Content of ‘Free Labor'” in Noralee Frankel and Nancy Schrom Dye, eds., Gender, Class, Race, and Reform in the. Progressive Era (Lexington: Univ. of Kentucky Press, 1991), 87-109; Evelyn Nakano Glenn, Unequal Freedom: How Race and Gender Shaped American Citizenship and Labor, (Cambridge: Harvard University Press, 2002). Other than the works I cite in this essay, I am not aware of scholarship which considers free labor at law from a gendered perspective.

[5] See Morton Horwitz, The Transformation of American Law, 1870-1960: The

Crisis of Legal Orthodoxy, (New York: Oxford University Press, 1992).

[6] John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Cambridge: Harvard University Press 2004), 6.

[7] I focus on capitalism in this essay to suggest that gender analysis is important even if evaluated according to earlier and nonfeminist criteria, making analysis of capitalism ultimately more accurate than earlier gender-blind understandings. This is not to say that class/capitalism is prior to, determinant of, or more important than gender/male dominance. Nancy Cott, Public Vows: A History of Marriage and the Nation (Cambridge: Harvard University Press, 2000). See also Holly Brewer, “The Transformation of Domestic Law,” in Christopher Tomlins and Michael Grossberg, Cambridge History of Law in America, Volume I: Early America (Cambridge: Cambridge University Press, 2008), 288-323.

[8] Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Era of

Slave Emanipation, (Cambridge: Cambridge University Press, 1998), 29.

[9] Riva Siegel, “Home as Work: The First Woman’s Rights Claims concerning Wives’ Household Labor, 1850-1880,” Yale Law Journal 103 (1994): 1073-1217

[10] Implied in this scholarship is the possibility of a new understanding of capitalism which would investigate the interaction of gender, class, law, and economy. Within this understanding, the family would appear not as incidental to but central to capitalism. There is a long history of historical and theoretical work on the role of the state within capitalist society. See for example Gordon, “Critical Legal Histories.” Feminists and scholars of gender have long written about gender and the state. See for example Carol Pateman, The Sexual Contract, (Stanford: Stanford University Press, 1988). Some feminists have written about gender, the family, and the economy. See for example Jeanne Boydston, Home and Work: Housework, Wages, and the Ideology of Labor in the Early Republic (New York: Oxford University Press, 1990). Along similar lines, Karin Rosemblatt argues for the importance of the family wage in Popular Front Chile in the 1930s. See Karin Alejandra Rosemblatt, Gendered Compromises: Political Cultures and the State in Chile, 1920-1950. (Chapel Hill: University of North Carolina Press, 2000.) While scholarship has dealt with all of the above, I am aware of very few historical works that could be said to explicitly address all three of gender, capitalism, and the state.

[11] In what follows I deal mainly with scholarship on marital conflict that resulted in violence and thus criminal cases. For scholarship on civil proceedings related to marital conflicts including but not limited to divorce, see for example Hendrik Hartog, Man and Wife in America: A History (Cambridge: Harvard University Press, 2000); Zoe A. Schneider, “Women before the Bench: Female Litigants in Early Modern Normandy,” French Historical Studies,Vol. 23, No. 1, (Winter 2000): 1-32; Sara M. Butler, “The Law as a Weapon in Marital Disputes: Evidence from the Late Medieval Court of Chancery, 1424-1529,” The Journal of British Studies Vol. 43, No. 3 (July 2004): 291-316.

[12] Eliza Earle Ferguson, “Judicial Authority and Popular Justice: Crimes of Passion in Fin-de-Siecle Paris,” Journal of Social History Vol. 40, Number 2 (Winter 2006): 293-315. Ferguson has recently published two other articles which do take gender seriously. In these articles she argues that men could only successfully appeal to passion as a reason for their inflicting grievous harm on their allegedly adulterous wives if they had convincing evidence of their wives’ poor character and, equally importantly, evidence that they had themselves lived up to standards of respectable masculinity by providing for their families. Curiously, and frustratingly, in these articles she does not return to her cases of violent women to examine the context and dynamics through which juries made their acquittal decisions. See also Eliza Ferguson, “Reciprocity and Retribution: Negotiating Gender and Power in Fin-de-Siècle Paris,” Journal of Family History 30 (July 2005):287-303; and “Domestic Violence By Another Name: Crimes of Passion in Fin-de-Siecle Paris,” Journal of Women’s History Vol. 19 No. 4 (2007): 12-34.

[13]Kristin Ruggiero, Modernity in the Flesh: Medicine, Law, and Society in Turn-of-the-Century Argentina (Stanford: Stanford University Press, 2004), 175-176.

[14] Ruggiero, 179.

[15] Unlike Ferguson, Frost does not take a large sampling of cases or provide statistics. Her article focuses on one case and does not discuss how representative Kitty Byron’s experiences were. Ginger Frost, “’She is but a Woman’: Kitty Byron and the English Edwardian Criminal Justice System,” Gender & History

Vol. 16 No. 3 (November, 2004): 538 – 560.

[16] Victims who were still alive and found themselves being put through a sort of gender trial must have found this an unpleasant ordeal. Along similar lines, in the early 20th century U.S. procedures required police to get statements from women hurt or made ill in the process of getting illegal abortions. Leslie Regan argues that the process of interrogation involved in producing such a statement served as form of humiliating and public punishment against women who had abortions. Regan also suggests that this complicates Michel Foucault’s periodization of punishment becoming less public, less humiliating, and more focused on confinement. From my personal involvement in Take Back The Night rallies and speak-outs against sexual violence I am familiar with the idea that survivors of sexual assault sometimes find contemporary trials to be humiliating and degrading; I am not aware of any scholarship treating trials themselves as a form of punishment of the people accused. See Leslie J. Reagan, When Abortion Was A Crime: Women, Medicine, and Law in the United States, 1867-1973 (Berkeley: University of California Press, 1997), 112-115.

[17] Scott, Gender and the Politics of History, 26.

[18] Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1985), 289-291.

[19] I recognize that states should be considered historically and as internally differentiated. Legal history is one important resource for this thinking, as is gender history. For examples of gender scholarship that seeks to historicize the state, see Linzi Manicom, “Ruling Relations: Rethinking State and Gender in South African History,” The Journal of African History, Vol. 33, No. 3 (1992): 441-465; and Elizabeth Dore and Maxine Molyneux, eds., Hidden Histories of Gender and the State in Latin America (Durham: Duke University Press, 2000).

[20] Gender and the Politics of History, 24

[21] Grossberg, Governing the Hearth, 289-291.

[22] Steve J. Stern, The Secret History of Gender: Women, Men, and Power in Late Colonial

Mexico (Chapel Hill: University of North Carolina Press, 1995), 99, 101.

[23] Arlene J. Diaz, Female Citizens, Patriarchs, and the Law in Venezuela, 1786-1904. (Lincoln: University of Nebraska Press, 2004), 217, 160.

[24] Diaz, 240. Sarah Chambers argues that a similar phenomenon existed in early 19th century Peru. Men sought to establish a legal interpretation of marriage that gave them absolute power over wives. Women on the other hand sought interpretations of marriage that placed limits and obligations on men in addition to women. Sarah Chambers, From subjects to citizens: honor, gender, and politics in Arequipa, Peru, 1780-1854, (University Park: Pennsylvania State University Press, 1999), 102.

[25] Jamie L. Bronstein, Caught in the Machinery: Workplace Accidents and Injured Workers in Nineteenth-Century Britain (Stanford: Stanford University Press 2008), 102-103.

[26] As with workplace injuries, courts often held that men should have been capable enough to avoid injury. This suggests an area for further exploration, the use of an ideology of masculinity within the law against actual men. John Fabian Witt’s Accidental Republic discusses this dynamic but only briefly.

[27] Alejandro de la Fuente, “Slaves and the Creation of Legal Rights in Cuba: Coartacion and Papel,” Hispanic American Historical Review 87 (2007): 659-692.

[28] Diana Paton, No Bond But The Law: Punishment, Race, and Gender in Jamaican State Formation, 1780-1870 (Durham: Duke University Press, 2004), 80-81.

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