Six
Gynaetopia:
Feminine Genealogies of Common Law

The Aegyptian hieroglyphics figured the Heavens by a woman, having her eyes covered, and laden with many mountains on her back: making hereby, that these divine creatures saw all things, even they which were to come, as then present, and withall supported the misdeeds of men with a forgetful remission; signified by the burdens so far removed from their regard, as all mens defects whatsoever, were cast behind their backs .^[1]

The destruction of images, the privileging of the word against the figures of discourse, marks a certain repression which is itself figured in the blindness of justice, in the all-seeing yet masked eyes of a woman burdened by measure and men. This chapter will trace the backface of that repression, that parasite, and indicate some of the possibilities of justice as an image and as a woman. The theme is as old as the querelle des femmes , the criticism of law and of the legal profession from feminine perspectives being an essential theme in all criticism or resistance to the misogyny or tyranny of the institution. Positive law was satirized as an expression of masculinity that ignored nature and justice alike:

These prophane men would bind the feminine sex to such laws as themselves are not able to observe, laws drawn from their own jealousy, their suspicion, their weakness, their avarice, their depraved conscience, their pride, thinking it good to prohibit others, such things as themselves could never effect: wherein they have regard to their own particular imperfection, and not the law of nature.^[2]

It would seriously embarrass lawyers, remarked Poulain de la Barre somewhat later, "if they were forced to explain what they meant by nature . . . and to explain how nature distinguishes the two sexes in the ways they imagine."^[3]

In many respects lawyers were a privileged object of feminine critique while law itself represented the essential reason, antagonism, and distance

[1] Gibson (trans.), A Womans Woorth at sig. 33v.

[2] Ibid. at sig. 30r.

[3] François Poulain de la Barre, Discours physique et moral de l'égalité des deux sexes, où l'on voit l'importance de se défaire des préjugez (Paris: Fayard, 1673, 1984 ed.) at 77.

Figure 1.
Laudation of Selden as Janus.

that characterized the masculine domination of the polity. The correspondence of women married to barristers of the Elizabethan Bar indicate that it was emotionally unfortunate and domestically undesirable to attach oneself to men of law. Lawyers, it was said, married for venal motives, namely money, social advancement, and political influence; they were married first and exclusively to their profession; they were mean-spirited, caviling, and much absent; the law consumed them and left them spent, deprived of civility, humor, and emotion.^[4] A slightly later tract, In Defence of the Female Sex, summarized the failings of lawyers in terms of "eager and disputative" men whose undoubted wit and judgment was expended in "thwarting and opposing one another" to the effect that they became "impatient, sour . . . morose" and incapable of conversation. The evidence explicitly offered for this observation was the training that lawyers received at the Inns of Court, where students "lead a recluse and monastic life, and converse little with our sex. They want neither wit nor learning . . . yet when they come into gay, though ingenious company, are either damped and silent

[4] Prest, The Rise of the Barristers at 115–126. For a comparable study of the lower branch of the profession, see Brooks, Pettyfoggers and Vipers at 132–151.

or unseasonably frolicsome and free, so that they appear either dull or ridiculous."^[5]

It is not the purpose of this chapter to rehearse directly the perennial and frequently barren terrain of the social incompetence, subjective estrangement, or emotional ineptitude of lawyers. The criticism of the male character of the early modern and modern legal professions can be juxtaposed more interestingly with a series of constitutional texts that not only argue the political and legal preeminence of women but also suggest the possible presence of a feminine genealogy repressed within the ancient constitution, a feminine unconscious to the doctrines of common law. At a popular level the misogyny of English law and the "dissembling practice" of its lawyers was countered explicitly in terms of female courts, women's law, and feminine justice. The anonymous theatrical polemic Swetnam the Woman-Hater arraigned by Women places the misogynist author of a tract published in 1615, titled The Arraignment of lewde, idle, froward and unconstant Women, on trial before a specially constituted women's court presided over by a "Ladie Chiefe Justice."^[6] The sentence passed by this "Female Court" upon the misogynist was (ironically) that he be silenced, that is, deprived of speech, and exiled.^[7] The pseudonymous Ester Sowernam responded to the same misogynist pamphlet by presenting a striking defense of women in terms of a genealogy of the feminine extracted from the Bible and ancient histories. Her argument listed the achievements of great women, the lineage of feminine rulers, and the virtues of the feminine more generally understood in terms of the attributes of specific women rather than in terms of any essential or homogeneous class character.^[8]

The focus of this chapter will be on the popular and learned invoca-

[5] Drake, An Essay in Defence of the Female Sex at 140–141. See also Astell, A Serious Proposal at 132–151.

[6] Anonymous, Swetnam the Woman-Hater Arraigned by Women (London: Meighen, 1620). J. Swetnam, The Arraignment of lewde, idle, froward, and unconstant Women (London: T. Archer, 1615). For commentary, see Joan Kelly, Women, History and Theory: The Essays of Joan Kelly (Chicago: Chicago University Press, 1984): Denise Riley, Am I That Name? Feminism and the Category of "Women" in History (London: Macmillan, 1988); Maclean, Woman Triumphant ; Jordan, Renaissance Feminism ; Maureen Quilligan, The Allegory of Female Authority: Christine de Pisan's Cité des Dames (Ithaca: Cornell University Press, 1991); Mary Anne Case, "From the Mirror of Reason to the Measure of Justice" (1993) 5 Yale Journal of Law and the Humanities 115.

[7] Anonymous, Swetnam the Woman-Hater at fol. K i b. The irony is simply that silence was in theological terms at least the duty or fate of women, as explicated, for example, in Fox, The Woman Learning in Silence .

[8] Ester Sowernam, Ester hath hang'd Haman: Or an answere to a lewde Pamphlet (London: N. Bourne, 1617). Also of interest are Rachel Speght, A Mouzell for Melastomus . . . or an apologeticall answere to that pamphlet made by J. Swetnam (London: T. Archer, 1617); Constantia Munda (pseud.), The Worming of a Mad Dogge: Or, a soppe for Cerberus the Iaylor of Hell (London: L. Hayes, 1617).

tions of feminine courts, female justices, and a separate and superior law originating from and administered by women under the feminine sign of fate or justice, fortune or phronesis. It will be argued that such texts—and I will analyze two in particular detail, John Selden's Jani Anglorum Facies Altera (1610) and the anonymous Lawes Resolutions of Women's Rights (1632)^[9] —form part of a repressed tradition of constitutional writings that traced a feminine genealogy of common law, an origin and a telos of legal judgment, in a lost or future gynocratic polity. In both method and substance, object and subject, such a retracing or going back deconstructs doctrine and recollects in place of the universalia of legal historicism the plural identities, the folds and dispersions, the heterogeneity of common law. In this respect the analysis takes up the challenge of repression and of the return of the repressed within juristic texts and specifically within constitutional doctrine.^[10] Genealogical method, in short, is forced by its consideration of the repressed, by the exigencies of a symptomatic reading to take the surfaces of law's history, its images and signs, its material body, as the site of its meanings, as the source of its interpretations, as its law of law. There will be, as there always is, an element of polemic in the reconstruction of other laws and alternative histories, and for that reason certain elements of the polemic should be indicated in advance.

First, the genealogy of a common law and custom unrecognized by men and unreported by Coke's sages of the doctrinal tradition^[11] involves the analysis of certain elements of the antirrhetic. It places one tradition, custom, and ethic against that of a singular law, one past in place of another, one temporality to the side of the Christian ethos, its economy, and its law. As Judith Drake percipiently remarked in her Defence of the Female Sex,

I cannot prove all this from Ancient records; for if any Histories were anciently written by women, time and the malice of men have effectually conspired to suppress them, and it is not reasonable to think that men should transmit, or suffer to be transmitted to posterity, any thing that might show the weakness and illegality of their title to a power they still exercise so arbitrarily, and are so fond of.^[12]

[9] Selden, Jani Anglorum; Anonymous, Lawes Resolutions .

[10] I have attempted to outline the exigencies of such a method in Peter Goodrich, "A Short History of Failure: Law and Criticism 1460–1620," in Goodrich, Languages of Law (London: Weidenfeld and Nicolson, 1990); and also in Goodrich, "Critical Legal Studies in England." See further, Marianne Constable, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law and Knowledge (Chicago: Chicago University Press, 1994).

[11] For general accounts of that tradition and its mentality, see Pocock, The Ancient Constitution and the Feudal Law ; Baker, The Reports of John Spelman ; Goodrich, "Ars Bablativa"; also Goodrich, "Poor Illiterate Reason."

[12] Drake, An Essay, at 23. For contemporary discussions of this issue, see P. Labalme (ed.). Beyond Their Sex: Learned Women of the European Past (New York: New York University Press, 1980) at ch. 8; Michelle Perrot (ed.), Writing Women's History (Oxford: Blackwell, 1982); P. Dronke, Women Writers of the Middle Ages (Cambridge: Cambridge University Press, 1984). Specifically on the politics of feminine history, see C. Pateman, The Sexual Contract (Cambridge: Polity Press, 1988); R. Coward, Patriarchal Precedents (London: Routledge, 1983); and in philosophical terms see le Doeuff, The Philosophical Imaginary .

Other authors consistently make a comparable point in antirrhetical terms, as Edward Gosynhill, for example, who in a work titled In Prayse of all Women in 1542 writes of

histories many I could forth lay
that maketh well with the feminine
of like sentence I dare well say
and grounded on good authority
howbeit because that poetry
is taken now in such despite
of other reasons I well you write.^[13]

A history of feminine practice is necessarily a psychoanalytic encounter: "Thus much remembered for women's constancy. . . . For men (maliciously jealous of women's honour) have buried (as much as in them lay) the most commendable deeds of such, to whom themselves were not more than Apes, nay worse imitators, if worse may be."^[14] In short, the historical evidence, in terms of gender, is negative and oppositional or dissonant with what was historically the exclusively male status and environment of the legal profession: "One must assume that those who made the laws, being men, discriminated in favour of their own sex."^[15] Finally, the intimacy of history and law ensures feminine genealogy can only be reconstructed through allusions culled either from the extralegal writings of women or through the analysis of the "other face" or repressed text of constitutional doctrine.^[16]

Second, as already remarked, the genealogical form of historical argument is somewhat allusive and its method correspondingly symptomatic. Its concern is not with an origin or continuity of descent but rather with

[13] Edward Gosynhill, The Prayse of all Women called Mulierum Pean: Very fruytful and delectable unto all the reders (London: Ihones, 1542) at fol. B iii b. Gosynhill was most well known for another work, Here Begynneth a Lytle Boke Named the Scholhouse of Women: Wherein every man may rede a goodly pryse of the condicyons of women (London: Thomas Petyt, 1541).

[14] Gibson (trans.). A Womans Woorth at sig. 15v. Cf. Hélène Cixous and C. Clement, The Newly Born Woman (Minneapolis: University of Minnesota Press, 1986).

[15] Poulain de la Barre, Discours at 78.

[16] The intimacy of history and law is a singular theme of Hotman, Anti-Tribonian, a work that was extremely influential among the antiquaries of the Elizabethan Bar. On the broader correlation, see Donald Kelley, Foundations of Modern Historical Scholarship ; and philosophically, Derrida, Of Grammatology .

the "accidents, the minute deviations—or conversely the complete reversals—the errors, the false appraisals, and the faulty calculations that gave birth to those things that continue to exist and have value for us."^[17] Genealogy suggests the study of the dispersed traditions and other customs of common law, its disparate sources, its several languages, its incorporation of many jurisdictions. At one level, the law is based upon what Selden terms "dulling custom,"^[18] upon legally discovered precedent and the transmission of narrow repetitions which Mary Astell somewhat later designated as the "foundation of vice . . . a merciless torrent that carries all before it," including prudence and virtue.^[19] In this sense the basis of law in custom is a species of ignorance or of forgetting. A feminine genealogy suggests that custom must face at least a double challenge. On the one hand it should be subjected to the criteria and criticism of reason and the virtue of its plural principles; on the other hand, it should be confronted by other forms of historical narrative, including those that predate or otherwise circumvent the doctrinally accepted progressions of legal custom, the self-evident and false truths of the common law tradition.

In both cases, the classical form of argument is to resort to a mythology of origins or of the "origins" of common law which are mystical precisely because the human source of law can never be directly represented. While it may be noted that common law has always resorted to mythical and often transparently feminine categories of origin in "time immemorial" or some other indistinct corpus mysticum at the dawn or border of law, the explicit invocation of female origins tends to take the rhetorical form of an opposition of history and tradition, past and precedent, as primary or first sources of law.^[20] That origin and reproduction are best figured by the image of woman or of femininity should occasion no great surprise, since "the definition of law can unfold only in relation to the question of the origin of law" and the question of origin or creativity is always at some level a question of femininity.^[21] The significance of the image of reproduction is indicative also of the need to recognize that the opposition between different species of historical narrative is a principal stake in the politics of

[17] Foucault, Language, Counter-Memory at 146.

[18] Selden, Historie of Tithes at vi.

[19] Astell, A Serious Proposal at 30, 49, 81–82.

[20] For a recent general discussion of the mystical origin, in which the mystical comes to designate that which has become separate from the institution, see de Certeau, The Mystic Fable at 79–121. On the concept of antiquity and origin see, for legal examples, Spelman, Original of the Four Law Termes ; Dugdale, Origines Juridiciales . For a fascinating series of theological arguments, see Favour, Antiquitie Triumphing over Noveltie .

[21] Hélène Cixous, Readings: The Poetics of Blanchot, Joyce, Kafka, Kleist, Lispector, and Tsvetayva (Minneapolis: University of Minnesota Press, 1991) at 19.

constitutional history.^[22] The play of history and of myth, of text and interpretation, is as much a feature of common law doctrine and its theory of sources as it is of the repressed genealogies of feminine jurisdictions.

Following the image or nothing, idol or woman, in the texts of law takes its place within an extensive history of repression and of failure, a history of texts and traditions that were interpreted out of existence by the ascendant doctrinal writers. The recuperation of repressed traditions, of abandoned customs, of the positive unconscious of legal science, can serve finally to remind the contemporary legal institution and profession of the more extensive and varied scholarly and popular traditions whose repression both accompanies and undermines the positivistic or scientific conception of law. It is a criticism of the margins predicated upon a truth lost within an interior space of legal history. It is a criticism that traces, in this instance, a feminine genealogy and practice of law so as to establish a lineage and possibility of difference that has been specified usefully by Luce Irigaray in terms of both history and myth. She argues first that "in order to make an ethics of sexual difference possible, it is necessary to retrace the ties of feminine genealogies . . . at the levels of law, religion, language, truth and wisdom. . . . [I]t is necessary to introduce into the history of reason an interpretation of the forgetting of feminine genealogies and thereby re-establish their economy."^[23] A genealogy of the feminine gender of common law, of its representation as a woman and its expression through the history of feminine lawgivers, as also of illustrious and erudite women, is also a form of political critique. An ethics of legal difference is developed so as to indicate the dispersed basis of common law, the plurality that exists within the constitution and prevents it ever claiming a unitary identity, a face that is purely its own: "A return to the origins of our culture reveals that it was once otherwise, that there was an epoch when it was the woman who initiated the rites of love. In that time, the woman was goddess and not servant, she guarded both the carnal and the spiritual dimensions of love."^[24] Whatever the legal implications of such an alternative mythology, the elaboration or the patient recollection of the diverse forms of myth, of other histories and practices, is indicative of both philosophical and cul-

[22] On which theme see Rossi Braidotti, Patterns of Dissonance (Oxford: Polity Press, 1991) at ch. 6; and addressed in terms of race, see Peter Fitzpatrick, The Mythology of Modern Law (London: Routledge, 1992).

[23] Luce Irigaray, "Le Mystere oublié des généalogies féminines," in Luce Irigaray, Le Temps de la différence (Paris: Livre de Poche, 1989) at 120–121.

[24] Irigaray, J'aime à toi at 210. In a secondary although although related sense a genealogical form of historical narrative is one committed to the study of the plural and dispersed roots of identity: "If genealogy in its own right gives rise to questions concerning our native land, native language, or the laws that govern us, its intention is to reveal the heterogeneous systems which, masked by the self, inhibit the formation of any form of identity." Foucault, Language, Counter-Memory, Practice at 162. See also Irigaray, Marine Lover of Friedrich Nietzsche .

tural possibilities. Its concern is with an ethics or practice that includes the possibility of a positive construction of alterity and with it a remission or better pluralization of the antirrhetic through its dispersion. There is, it will be argued, a certain politics to the use of history as a means of thinking difference.

The past is an extension of the present and it is salutary to recollect the implications of temporal horizons. It is salutary to reconsider the currently outmoded dialectical premise that the past thinks through us just as much as we think the past. The question which genealogy poses in this perspective is that of attentiveness and of the opportunities made available through psychoanalytic method of being thought differently, of thinking for oneself.^[25] More specifically in terms of the history of women in law, genealogy may contribute to what has been termed a "historicization of feminist jurisprudence,"^[26] to the analysis of the plural, disparate, and mutable statuses of women in law over the longue durée of the Anglican legal tradition. In a stronger political sense, however, the jurisprudence of difference is a jurisprudence concerned to recognize and advocate the specific and separate status or space of women in law. Its aim is to specify in legal terms the thought of difference, to engender a legal protection of sexual identity, speech, writing, and relationship.^[27] Legal recognition of an ethic of sexual difference, it will be argued here, depends upon a concept and practice of justice capable of recognizing a separate and plural status for the genres of the "other," the stranger, the nomad, alien, feminine, and animal.^[28] As part of a jurisprudence of difference the legal recognition of the separate status of the feminine genre can borrow significantly from the feminine genealogies of law implicit in early constitutional texts and in the histories of women that are here spelled out under the name of gynaetopia . In contemporary terms the question is not simply that of

[25] Michel Pêcheux, Language, Semantics and Ideology (London: Macmillan, 1982) at 220: "Nobody can think in anybody else's place: the practical primacy of the unconscious, which means that one must put up with what comes to be thought, i.e., one must 'dare to think for oneself.'"

[26] See particularly Jeanne Schroeder, "Feminism Historicized: Medieval Misogynist Stereotypes in Contemporary Feminist Jurisprudence" (1990) 75 Iowa Law Review 1135; for a substantive example of such analysis see Jane Larson, "Women Understand So Little, They Call My Good Nature Deceit: A Feminist Rethinking of Seduction" (1993) 93 Columbia Law Review 374.

[27] On justice and difference, see Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990), particularly at 226–241. For further and disparate discussion see Irigaray, Speculum of the Other Woman at 227–242; Cornell, Beyond Accommodation at 1–20.

[28] On the stranger and the feminine, see Julia Kristeva, Strangers to Ourselves (New York: Columbia University Press, 1990), especially at 42–46: "It is noteworthy that the first foreigners to emerge at the dawn of our civilization are foreign women—the Danaides."

recovering feminine genealogies, of remembering the imaginary zone of all that which the institution has excluded, it is also that of comprehending the extent of the legal repression of the feminine, not simply in terms of legal doctrine but equally in terms of legal method and conceptions of justice: "To claim a right to subjectivity and to freedom for women, without defining the objective rights of the feminine genre, appears to be an illusory solution to the historical hierarchy between the sexes and risks subjecting women to the power of an empty affirmation."^[29] The specification of the legal spaces, languages or sites of genre and of difference, of corporeality, subjectivity, and sexuality takes jurisprudence both forward and back to the feminine as the structural principle of difference.

Janus, or the Backface of Common Law

The reference to Janus as the deity that emblematized the feminine virtues in and of history is a standard trope within the querelle des femmes . Janus looked both forward and back, to the people and to the Gods, but also, as historiography, Janus represented a feminine principle, the mixture of memory and foresight, evidence and faith.^[30] There is a sense in which Janus could represent betrayal, in the contemporary idiom of the "two-faced" or of deception, and one history of women, Heywood's Tunaikeion, offers such betrayal by a woman as the source of the Salic prohibition upon feminine succession.^[31] More usually, however, Janus was the sign of a history of feminine virtue and fame, a history of the power of women and of the deceit or neglect that veiled such histories from public view. Janus was in many respects the emblem of histories of feminine alterity in opposition to the laws and historiographies of dogma and doctrine. Such genealogies, for they were inevitably plural accounts of virtues, powers, archetypes, and myths, belonged to the tradition of laudation of famous women, but they were not merely formulaic exercises, and on occasion their political impetus would be made quite explicit, as where Agrippa observes that "had women but the power of making laws, and writing histories, what tragedies might they not have published of men's unparalleled villainy?"^[32]

The correlation of history and law was no accident. The genealogical challenge to the history of famous men as universal history was necessarily a defensive or apologetic exercise and it was equally necessarily an attack upon law, upon the rules of inheritance, succession, and transmission. In a

[29] Irigaray, J'aime à toi at 18.

[30] For one example, in the context of ecclesiastical governance, see Griffith, Bethel at 5, depicting the household economy as being "Janus-like, it hath two faces: it looks backward, and forward."

[31] Heywood, Tunaikeion at 123.

[32] Agrippa, De Nobilitate at 51.

sense only Janus could mark the history of famous women and feminine virtues as a history of difference or of women within the polity and mark such discourse as a political and legal polemic. The assertion of a feminine reason within history was of itself a challenge to law, to written reason, to its history and inheritance. Feminine genealogies challenged doctrine by refuting the claims of natural law and its imagined differentiation of the sexes, and they equally challenged the authorities, the texts upon which doctrine was founded. Sir Thomas Elyot's Defence of Good Women builds upon the apologetic tradition by directly refuting the scholastic subordination of women drawn from Aristotle's De Generatione Animalium . The response to Aristotle's claim that woman is an imperfect work of nature (an infertile male) is that "the said words so spitefully spoken, proceeded only of cankered malice, whereunto he was of his own nature disposed." That Aristotle was dissolute and also inconstant could be proved by the stories of his idolization of Hermia, his concubine to whom he would apparently make sacrifices and sing hymns, to which information it is added that "this great philosopher was a blasphemer."^[33] Elyot's dialogue then proceeds to list the virtues of the feminine within the polity and specifically refutes the scholastic claim that masculinity and rationality are cognate terms. Feminine attributes of "discretion, election and prudence" are the soul of reason and "do make that wisdom, which pertains to governments."^[34] It is also pointed out that reason is unconnected with strength or bodily power, to which it is added that the bulk of the arts pertaining to the polity were invented by women and are best signaled by femininity, by the Muses but also by Minerva, Diotima, Aspasia, Theophraste, Leconcium, Carmentis, and all the other erudite and eloquent women of classical history.^[35]

The history of alterity, and specifically of the feminine figures of the arts and the virtues, suggests that there might be another history of reason, an unconscious or repressed narrative of law. The possibility that there might be an alternative eloquence and disparate forms of reasoning and of their transmission was already a significant challenge to law. The literary and iconographic histories of women suggested the preexistence of an imaginary within the polity, of images within custom, fantasms within law. Time and again the stake of history is the questioning of the doctrinal

[33] Sir Thomas Elyot, The Defence of Good Women (London: T. Berthelet, 1534, 1545 ed.) at fol. B v b.

[34] Ibid. at fol. C vi a.

[35] Ibid. at fol. C vi b—C vii a. For various lists of such erudite and artistic women, see also John Leslie, De Illustrium Foeminarum in Republica Administrandi, ac Ferandis Legibus Authoritate (Rheims: Fognaeus, 1580) at sig. 15v–23v. Gibson (trans.), A Womans Woorth at sig. 4r–14v; Gilles Ménage, Historia Mulierum Philosopharum (1690), translated as The History of Women Philosophers (Latham: University Press of America, 1984).

notion that there is only one reason and so only one law. More than that, the histories of "noble learned women" are predicated upon the historical character of all law and so opposed to the very notion of a law of nature which transcendentally predetermines the status of women. Law, for John Leslie in his protracted Defence of Princesse Marie Queene of Scotland, was the product of human history: "The law of nature or ius gentium is and ever was after the time that there were any nations or people and ever shall be."^[36] If history, as custom, practice, and precedent, was the basis of common law, then the significance of the depiction and the telling of histories of feminine governance, of women lawgivers and other illustrious or erudite figures, had the direct status of political and legal evidence of women's suffrage. History could play the law: "For time to Laws themselves gives Law full oft."^[37]

The enfolding of orders, of genres and genders, is in many respects the signal theme of Jani Anglorum Facies Altera, a work that is explicitly dedicated to "the Janus face of English law . . . [so that] its noble origin does not lie hidden, but light attending makes it far more clear and bright."^[38] The emblem of common law was explicitly "the Reverse or Back-Face of the English Janus,"^[39] which was taken to mean the stories, fictions, and legends of common law, "which I offer up in sacrifice . . . these scraps and fragments of collection, relating entirely, what they are, and as far as the present age may be supposed to be concerned in ancient stories and customs to the English-British state and Government."^[40] The two faces (facieque biformi ) of English law, "for thou canst hardly choose but own him having two faces,"^[41] are variously British and Norman, preconquest and postconquest, native and foreign, saturnine and mercurial, antique and contemporary, before and behind, and finally, and most significantly, both male and female. It is a law that is marked, in other words, like Janus by ambiguity and a certain indistinction. Where Janus was the god of doors and gates and presided over the beginning or origin of things, the Janus of English law similarly guarded the origin or entry into law, the indistinct, preinstitutional, and indefinite time of customary or unwritten law. Its history, Selden argues, is not only two-faced but also effaced by antiquity and

[36] Leslie, A Defence at sig. 129r. See Jordan, Renaissance Feminism at 243–246, for discussion of this point. See also another Scot, David Chambers, Discours de la Légitime succession des femmes aux possessions de leur parens et du gouvernment des princessess aux empires et royaumes (Paris, 1577, n.p.). More broadly, see Gerda Lerner, The Creation of Feminist Consciousness (New York: Oxford University Press, 1993), ch. 11.

[37] Selden, Jani Anglorum at 4.

[38] Ibid., Preface.

[39] Ibid. at fol. A 2 a.

[40] Ibid. at fol. A 2 a.

[41] Ibid. at fol. A 4 a.

marred by neglect, by lack of regard and "the injury of time" such that its past and its records are as close to myth as to historical narrative. From the remains of record and history Selden endeavors to describe the legal constitution of "Pananglium, that is, All England,"^[42] a realm that in one view, that of Marcianus Heracleotes, has in it thirty-three nations.^[43] And behind the legends of origin, of the various nations and languages of Albion and so of common law, behind the narratives of its diverse temporal beginnings, the representation or image of common law, its symbolic descent, is consistently portrayed as being from a variety of feminine images and female figures, the forgotten faces of a law that was never one.

The metaphor of prosographia , used by Fortescue and others, of a feminine face of justice returns most forcefully in Selden. To represent the backface or underside of the constitution, the institutional unconscious, myth, or image, leads to a return to the legal querelle des femmes. It leads in particular to a tabulation of famous or illustrious women, legislators, lawgivers, and sovereigns from antiquity to contemporaneity. In the time of the laws, old heroes went by the names of gods and in the druidical Celtic colony of Britain, the semnaitheia or "venerable Goddesses" ruled. These were the goddesses of justice, the Furies, "also called Themis," who sat "upon the skirts of the wicked" and, as (by antiphrasis ) the Eumenides, rewarded the good and "such as are blameless and faultless."^[44] They are the first judges of the Celtic common law, the Deis Matribus or mother goddesses to whom altars were inscribed and before whose dreadful justice the populace would tremble and shake. To this description Selden adds: "Nor let it be any hindrance, that so splendid and so manly a name is taken from the weaker sex, to wit, the Goddesses."^[45] It is in honor of these Goddesses of the night that the terms of the law and indeed the divisions of the calendar—"the spaces or intervals of all time"—are defined not by the number of days, but that of nights.^[46]

As to the historical face of the common law, it was frequently female. Thus, for example, the histories relay the government of Martia, from whom the Britains got the term Martian law or Merchenlage, which became one of the three local systems of law to be merged by Edward the

[42] Ibid. at 94.

[43] Ibid. at fol. A 3 b.

[44] Ibid. at 4-5. For a further and contrary discussion of the three Furies—Alecto (or Luctificia), Tesiphone, and Megaera—see Heywood, Tunaikeion at 47-50, where they are listed as "infernal Goddesses." See also Selden, De Diis Syris Syntagmata II.

[45] Selden, Jani Anglorum at 5.

[46] Ibid. at 6. (As, for example, in "fortnight.") The gender of night, of course, has many further significant connotations, some of which can be pursued in Schiesari, The Gendering of Melancholia. See also Kristeva, Black Sun .

confessor into a law common to the three kingdoms of Britain.^[47] While Selden admits a certain "poetick licence and rhetorical figure" to the pre-Roman stories, his own account, which starts with the druids, the severe and melancholic figures reported by Caesar, Strabo, and Tacitus, is even more explicitly feministic. Taking the side of Tacitus, who reported that the Germanic tribes held their women in almost mystical awe, Selden savages the antifeminine sentiments of Bodin, of the Salic lawyers, and of Aristotle himself. Women in Britain participated in counsels of war and in military duties, indeed "Britons were want to war under the conduct of women, and to make no difference of sexes in places of government and command."^[48] In one aspect the argument is specific to Britain and to the regency of English Queens, particularly those most illustrious of monarchs, Boadicea and Elizabeth. Women monarchs had often been the most successful and, as Serjeant Lodowick Lloyd, in an equally feministic passage, argued slightly earlier, "if men govern like women, then women should govern."^[49]

Selden's view was both descriptive and prescriptive, it being his belief that women had governed and that they should govern. In terms of the various pasts that Selden depicts, all are witness to feminine rule. In mythology there were "more She-Gods than He-Gods," while "virtue herself . . . is female in dress (cultu ) and in name."^[50] Indeed Selden states that "I will not declaim female excellency here: the thing speaks for itself more than I can, and the subject is its own best orator." What follows this rhetorical gesture is a denunciation of Bodin's De Republica and an even more polemical assertion that Aristotle would admit women to government "whatever the foolish interpreters of the Politics say."^[51] Such an argument is a commonplace drawn fairly directly from the antinomic or polarized form of the querelle des femmes. ⁵² There can be no natural law prohibiting women from government because historical counterexamples indicate that male rule, far from being universal and unchanging, is quite frequently the historical exception. Against Bodin, Selden thus lists the instances of matriarchy at the level both of cultures, such as Egypt and Israel, and at that of individual monarchs, such as Deborah or Artemis.^[53] At an ontological level he

[47] On which see, particularly, Dugdale, Origines Juridiciales at sig. 54-v.

[48] Selden, Jani Anglorum at 18-19.

[49] Lodowick Lloyd, A Briefe Conference of Divers Lawes: Divided into Certaine Regiments (London: Creede, 1600, 1602 ed.) at 90. (The source of argument, ironically, is Aristotle, Politics , ch. 7.)

[50] Selden, Jani Anglorum at 18.

[51] Ibid. at 21.

[52] See Maclean, Woman Triumphant at 29-31, 38-39; the polarities of argument are also analyzed in Maclean, Renaissance Notion of Women at 2-5.

[53] Selden, Jani Anglorum at 19-21. Lloyd, Conference of Divers Lawes at 91-92, offers a similar list.

aligns women to the other face of reason, to the virtues of "sanctity and foresight," on the strength of which the arguments against women can only be taken for "mad rude expressions. . . not unfit for a professor in Bedlam College. . . . Virtue shuts no door against anybody, any sex, but freely admits all."^[54]

In one aspect, Selden's argument is explicitly that femininity is the other face of law, which face he links directly to mythology, to fragmentary records, to a feminine imaginary and figures of virtue. Elsewhere, in a study of the genealogy of the gods, Selden depicts the plastic symbolism of justice in terms of a left-handed God, blind and beautiful, pure and untouched; she was nature in culture, wisdom in law.^[55] The metaphor (prosopopoeia ) of another face of law may indeed be taken in many different senses. By analogy with Janus, the female face of law is not only the face that looks to the gods, but also that which looks back, that remembers the historical succession of feminine rulers and also and more profoundly the experience or generation of habits and customs that are "antique, buried in rubbish, old and musty." In other words the history of law had covered over or failed to disinter the signs of a sex "equally divine as the male."^[56] To understand custom one must look at law, but that law is never simply one. In this instance the law of custom was "other" to law or, more accurately, an other law in that in and through custom, laws were to be "discovered" or "found" or "declared" or otherwise born. Femininity would here be the hidden face of the source of tradition, and women would be both the custodians of the unwritten and the symbols of its transmission. Here, in the iconography of justice, Justitia would be blindfolded to indicate eyes that looked back as well as to suggest the sightless vision of interiority, of foresight, and so of the future. The innocence of law, its iconic representation as a system in the image of Justitia, thus signals a deep irony. It can be formulated best in terms of the dissemblance that presents the emblem of the legal system as a whole to be justice as a woman, in the context of a substantive discipline of law that denied personality, inheritance, and public office to women. Such, however, is the logic of the icon: it can never be present, it represents that which cannot appear for itself. Thus, as the representation of the rule of law, of pure governance or totality, Justitia can never be present as the content of the system. That justice is represented as a woman and that the reality of her feminine form, her body, exists precisely outside the legal institution as its image, connotes further ironies. One such irony must be the reemergence in the sixteenth century of the symbolization of justice as a blindfolded woman. How better to represent

[54] Selden, Jani Anglorum at 20.

[55] Selden, De Diis Syris Syntagmata II at 124-125.

[56] Selden, Jani Anglorum at Preface.

an inaugural and mathematically repeated justice than as blind to the world? How better to repress the body than by closing its eyes and forcing in into an internal and dark world of the spirit? How better to figure the control or subjection of a woman and of her passion than by hiding her eyes—theologically and, poetically, her soul—from the vision of law? In the last instance could it not be argued that through blindfolding a woman, through erasing her face, the representation of the purity of law was only possible though the practice of injustice? The men who burden the back of the feminine deity in the Egyptian hieroglyphic could perhaps be read as having established a timeless metaphor of innocence parasitic upon blinding their host.

Janus and Justitia are alike ambiguous figures and both connote a savage or at least extreme power of the feminine. The icon of Justitia in this sense institutes a space both of potential and of danger within which the femininity of virtue is a paradox against established law.^[57] Virtue is a feature of the soul, and although the soul has no sex, "the formal understanding of things that are, or may be, is signified to us by the feminine virtues." The same treatise later adds that in relation to government "the virtues feminine hath been of greater efficacy than men . . . it consists much more of debating cases, and the faculty imaginative, which are indeed the functions of the soul."^[58] A further paradox is that despite such attributions of power, wisdom, and foresight to the feminine soul, the woman is also the figure of a radical evil, of idolatry, and of image-service. The foresight that Selden attributes to femininity is not only a sign of the transcendental quality of legality itself. Foresight is connotative also of soothsaying and divining, of the powers of the divine which belong either within or without the law, dependent upon the tasks or the purposes to which these powers are put. A law that borrowed substantially from the Anglican conception of a dual polity could not avoid confronting the power of such feminine reason, either to confirm or to banish its art and practice. For in the end, the principle of reason upon which law was founded was neither male nor female. It had a sex only in its embodiment (in corporibus est sexum ), in its materialization, in the intuition, discrimination, memory, or choice through which it becomes law for us: the reason of judgment, of the application of law, is deemed the law of the second Venus, the copulation of norm and fact, general and particular, rule and circumstance.^[59]

[57] Gibson (trans.), A Womans Woorth at fol. A 10 a: "I might call it a paradoxe, because some men (vainly transported) no doubt will tearme it so."

[58] Ibid. at fol. 4 a.

[59] Selden, Jani Anglorum at 11. Cf. Elyot, Defence of Good Women at fol. C iii a—C iv b, who particularly stressed this point. Not only is reason, as an aspect of the soul, by nature both male and female, but prudence , the feminine quality of prudentia or foresight by which the exercise of judgment is made possible, is a female art.

Woemen's Law

In concluding his argument as to the right of women to govern, Selden states, "nor could I forbear out of conscience with my suffrage, to assist as far as I could, that sex, which is so great and comfortable an importance to mankind."^[60] The question which will now be posed is that of the significance and legal context of this self-confessed desire to alter the constitutional, political, and legal boundaries of female personality. It is not a desire that appears to have greatly affected Selden's other works, and in his Titles of Honour and in his Table Talk , to take the two most obvious examples, the place of women is not visibly altered. In the former work, "oeconomic rule" is described in scholastic manner as the basis of community and civil society—as itself the first form of societas —and is said to have "in its state, the Husband, father and master, as King ."^[61] Where Selden's legal community was historicist and civilian and so only generically concerned with the personality of women, the feminine regency of the latter portion of the sixteenth century, and certain theological debates around that issue, had a far more direct and practical effect on common law.

As is appropriate for a discussion that stems in part from the English Janus, the most significant contribution to the debate arguably comes from, or is responsive to, Scottish writers. Selden had challenged some aspects of the Renaissance interpretation of Aristotle, and in this regard he builds upon a political tradition that saw Elizabeth's sovereignty as an occasion to reassert the argument for feminine office and rule. John Case, in Sphaera Civitatis of 1588, had attacked the assumption that the domestic duties and subjugation of women should be interpreted as extending to the public sphere. "Experience makes her wise. What, therefore, prevents women from playing a full part in public affairs? If one is born free, why should she obey? If one is heiress to a kingdom, why should she not reign?"^[62] At one level this argument simply recognizes female regency as historical reality and suggests that constitutional doctrine recognize this accomplished fact. More interesting, however, than the political assertion of a challenge to scholasticism is the desire to develop and interpret this

[60] Selden, Jani Anglorum at 21.

[61] Selden, Titles of Honour at 2–3. Selden, Table Talk at 20–22. Mention should also be made of one of Selden's most extraordinary works, De Diis Syris Syntagmata II, which lists fabulous idols and other illicit gods mentioned in the Bible. It also includes, at 151–165, a genealogy of the gods (De Genealogia Deorum ) which lists justice and law under the heading De Diis Moralibus.

[62] John Case, Sphaera Civitatis (Oxford: n.p., 1588) at 40–41, cited and discussed in Maclean, Renaissance Notion of Women at 60–61.

argument on the strength not of the classics but of common law. Thus, in debating the more complex issue of Mary Queen of Scots, it is John Knox, attacking the "monstriferous empire," the enormity, vanity, odor, and "pestiferous policies" of this idol, this "cursed Jezebel," who, ironically, relies most comprehensively upon Roman law and patristic interpretations.^[63] The Anglican apologists for women turn to the vernacular English jurisdiction and the maternal common law.

The most indicative and proleptic feature of Bishop Aylmer's response to Knox is that, after listing the fallacies of the traditional attack upon women, he specifically turns from theology to jurisprudence and directly addresses the question of which law should govern and determine this debate:

I say therefore that this matter belongs not to the civil law, but to the municipal law of England, for like as every field brings forth not all fruits: so is not one law meet for all countries. I grant that the civil law is the best, the perfectest and the largest, that ever was made: yet comprehends it not all things in all countries . . . wherefore in appointing us to be ordered by civil law you offend in iustitia distributiva . . . our law must direct us, because it best agrees with our country.^[64]

Civil law would smother England and extinguish those customary rules that were the distinctive inheritance of common law, its ancient stories, "the witness of time, the candle of truth, the life of memory . . . and the register of antiquity."^[65] The civil law, in its universality and abstraction, in its size and its strength, would destroy the feminine virtues of the local and particular experience of common law. Like a woman, the common law is represented as being inessential and particular when compared to its parent or its Continental competitor; it has either to mimic the stronger and prior law or differentiate itself by defining itself against it. But whichever is the case, the rule of the parent civil law is a trauma for a common law which seeks its own identity through separation, antirrhetic, and polemic. For Aylmer it is thus our "own weights" that should weigh in the scales of justice, and by those measures women are to be more liberally treated and their right to succession and office allowed.

Even more striking for its assertion of the vernacular law is the work of John Leslie in defence of Mary Queen of Scot's claim to the English Crown: neither civil law nor Salic law have any place in England where the law is unwritten and "grounded onlie upon a common and generall custome throughe owte the whole realme . . . as apperethe by the treatise of the aunciente and famous writter upon the lawes of the realme named

[63] Knox, First Blast of the Trumpet at 40 and 58.

[64] Aylmer, Harborowe at fol. K 4 b—L i a.

[65] Ibid. at fol. E 4 b.

Ranulphus de Glanvilla."^[66] Leslie's account of the law ostensibly builds upon a detailed knowledge of uniquely English rules. The question of succession, concerning as it does the royal prerogative and powers, must be decided by rules that uniquely govern the sovereign. To this effect he cites the "maxime of lawe" that "no maxime or rule in the lawe can extende to binde the kinge or crowne, unless the same be speciallie mentioned therein."^[67] On the strength of this principle of interpretation, Leslie admonishes those who had taken legislation of 1350, An Act Touching such as be born beyond the Seas , confirmed in 1368, as applying to the Crown, which was not specifically named. The legislation was taken, though only by implication, to deny the right of inheritance in England to those who were born out of England, out of the "ligeance of the King," and whose parents were not "of the obedience of the Kinge of Englande."^[68] To apply such law to the Crown not only ignored the principles of statutory interpretation but also ignored constitutional history and the law on strangers recollected from English cases whose records no longer survived.

The distinction and idiosyncracy of English law is a theme common to Aylmer and to Leslie. It is this concern to argue a question of natural and biblical law in terms of local custom and the specific character or constitution of Britain to which later feministic legal texts return. Aylmer has a marginal note which states laconically that "God is English," while Leslie revives an antique aphorism, "Regnum Angli[a]e est regnum Dei . . . and that God hathe ever had a special care of yt."^[69] Although Leslie returns to refute the traditional arguments of the querelle against women, namely that the Bible, nature, history, grammar, and common sense all exclude them from office, it is significant that his work ends in the manner of common law doctrine by citing English custom and English legislation: "By custom in England all manner of . . . jurisdictions and other prerogatives [are], and ought to be, as fully and wholly and absolutely in the Prince female as in the male, and so was it ever deemed, judged and accepted."^[70] It is also noteworthy that in terms of historical examples of illustrious women (illustrium foeminarum ) it is queens of England who are lauded all the way back to Noah, "whom prophane writers call Janus,"^[71] the other emblem of English law. In short, the repressed genealogy of the feminine rulers of the Island Britannia is all that is needed to overturn foreign prescriptions and

[66] Leslie, A Defence at sig. 57r–v. His other major statement on women was the more derivative De Illustrium Foeminarum , which lists erudite women (eruditae mulieres ) and urges Queen Mary upon England.

[67] Leslie, A Defence at sig. 59r.

[68] Ibid. at 75r–v.

[69] Aylmer, Harborowe at fol. P iv b; Leslie, A Defence at sig. 97v.

[70] Leslie, A Defence at sig. 137v.

[71] Ibid. at sig. 132r.

their "counterfeit law." It is enough, Leslie argues laconically, "to show and prove that women have from time to time born princely regiment in the most notable parts of the world and most famous commonwealths."^[72]

It is upon the particular character and quality of Leslie's legal interests that attention should be focused. Subsequent texts that argue for female rights or simply attempt to protect or defend the status or the interests of women are most striking where they attach such concern to substantive legal issues. Thus, for example, there are texts such as Heale, An Apologie for Women of 1609, which endeavor to argue for change in the law on the basis of theological and moral prescriptions. The sole topic of Heale's Apologie is whether a husband has a legal right to beat his wife. In analyzing the civil law—which governs all aspects of spousals and marriage—Heale finds many rules that are archaic, ignorant, or simply morally objectionable. The catalog of laws in need of reform includes the dependence of the wife on the husband in terms of dignity (she takes his name and status), and the duty of the wife to follow the husband from city to city or even abroad. It includes the "strict and obdurate" rule that the wife lose her dowrie for giving a "lascivious kiss" and equally remarks the inequality that allows the husband to commit adultery but rules that if the wife "play the Adulteresse . . . the husband may then produce her into publike judgment, deprive her of her promised dowrie and expose her to perpetual divorcement."^[73] Nowhere, however, in civil or canon law can Heale find any "positive sentence or verdict that it is lawful for a husband to beat his wife."^[74] It is pure interpretation based upon the invective of "mysogynaes" and "cynickes" who have either the hate or the ignorance necessary to bend the law and to suggest that so indecorous, immoral, and ill-mannered a custom could possibly be English law. If it is, however, to be taken as law, nothing says that the wife is legally bound to endure or tolerate such beating. She may leave her husband and the husband must pay her an adequate maintenance during her absence.^[75]

[72] Ibid. at sig. 129v.

[73] W. Heale, An Apologie for Women (Oxford: J. Barnes, 1609) at 25–26. (Citing Code 9.7.)

[74] Ibid. at 28. Perkins, Christian Oeconomie at 688.1, indicates that a wife may leave her husband if he fails to protect her from a stranger or if the husband threatens harm. Ridley, View of the Civille and Ecclesiasticall Law at 82: "If any man beat his wife for any other cause, than for which he may be justly severed or divorced from her, he shall for such injury be punished."

[75] Heale, Apologie at 46. Godolphin, Repertorium Canonicum at 507–508, cites Sir Thomas Simmond's Case as well as ecclesiastical doctrine to the effect that correction must be reasonable. Reasonable appeared to mean that the husband could use physical force to correct the wife but only where her offense was one for which the husband could sue for divorce. Interestingly, in light of the earlier discussion, Swinburne, A Briefe Treatise of Testaments at 300, exempts the Queen from the exclusion of women from making wills without the consent of their husbands.

Heale, whose text has generally been taken as an overextravagant praise of women, argues by extensive analogy and by reason of consistency. While his work certainly has its share of arguments drawn from the querelle —he praises famous women, he adopts the theological argument that Eve was made of man, but man was made of earth ("man by a strange kind of metamorphosis [was] converted into woman"^[76] )—the primary force of the argument is pragmatic and legalistic and does not go further than suggesting that male and female are equal in their qualities as in their failings. It is, for Heale, ultimately a constitutional question and so a question of manners, decency, and decorum in the estate of husband and wife. As decorum is the end or goal of the Anglican commonwealth, it is the task of the lawyer "as a laborious traveller [to go] through all estates, to bring all unto decency. He ordereth the estate of monarchs and princes; of peers and nobles; of magistrates and subjects; of parents and children; of husbands and wives; of masters and servants . . . so that an absolute indecorum is an absolute breach of the law."^[77] Such a view may well seem to come close to the heart of the unwritten tradition: what is against the judicial perception of good manners or is "not without vice" is unlawful of itself as being contra bonos mores , indelicate and extreme.

The evidence of the Repertorium Canonicum and other abridgments and treatises would seem to suggest that in some areas the law does change to the end of greater protection of the separate rights of women. The rights or interests protected vary over time and are normally attendant upon, or secondary to, male interests. Nonetheless, fictions are developed to allow the husband to endow the wife;^[78] the issue of duress in marriage is canvassed in relation to gifts and wills made by the wife either to the husband or to strangers to the marriage;^[79] the wife is allowed a plea of non est factum in relation to debts;^[80] the interest of the unmarried woman in her own reputation is protected rigorously by laws of defamation;^[81] there is legislation on rape and the carrying away of unmarried women with property;^[82] the law governing separation and rights of alimony is further

[76] Heale, Apologie at 55–56.

[77] Ibid. at 49–50. Compare Downing, A Discourse at 2–3: "Good manners cause obedience, and religion naturally begets good manners . . . for although ill manners are per accidens the cause, or rather the occasion of making good laws, yet they are better in the executing, best when they are obeyed."

[78] On the development of fictions, see Perkins, Profitable Book at 196; Thomas Wood, An Institute of the Laws of England (Savoy: Sare, 1720) at 101–104.

[79] See Swinburne, A Brief Treatise of Testaments , at 80–84; Godolphin, Orphan's Legacy at 31–35.

[80] See Godolphin, Repertorium Canonicum at 507.

[81] Ibid. at 515–519. See, for example, Pollard v Armshaw (1601) 75 ER 1073, or Dorothy Brian v Cockman 79 ER 881.

[82] A line of legislation which begins with a statute of 1486 (3 H VII cap. 2) raising the penalties for carrying a woman away against her will "that hath lands of goods."

elaborated,^[83] as are other rules designed to maintain the reputation and decorum of the feminine. Decorum, however, while it may be the oldest of legal criteria is hardly the most definite nor necessarily the most accessible in the eyes of lawyers. The greatest legal monument of the querelle is not Heale's impassioned defense, nor Selden's lucubrations on the English Janus, but rather a legal manual in the style of a work of self-help called The Lawes Resolutions of Women's Rights , anonymously published in 1632.^[84] While the popularization of legal knowledge was a dimension of the vernacularization that accompanied print, and many law dictionaries and books of precedents and treatises were prefaced with remarks to the effect that every subject of the realm could now know the law,^[85] a book devoted to women's law with a running title Woman's Lawyer was a remarkable event. What could "woman's law" be if the law knew no such category? The answer is that for the purposes of this new legal discipline, the author of the Woman's Lawyer replaces the first division of the law of persons—that between slave and free—with "a primary distribution" between masculine and feminine, for masculum et foeminam fecit eos .^[86] Yet the category of woman includes no single designation or definition but rather lists every transaction in which femininity—the various categories of feme, mulier, foeminam , dowager, concubine, virgin, or ward—was an element.

The purpose of the treatise is twofold. It is first designed simply to extract from common law sources—from statutes, conjoining customs, cases, opinions, sayings, arguments, judgments, and points of learning—that part of English law "belonging to women" or that which "contains the immunities, advantages, interests and duties of women."^[87] In this respect the work is ostensibly addressed generically to the illusory referent "women" and is designed to provide information not otherwise readily available "with as

[83] See, for example, Hyatt's Case deciding the right of women to alimony, reported in Godolphin, Repertorium Canonicum at 493–504; also, Wood, An Institute at 105–109.

[84] Anonymous, The Lawes Resolutions . Some have attempted to attribute the work to Sir John Doderidge, author inter alia of The English Lawyer of 1631, but there is no compelling evidence. The work is unique in its scope in English law, although it might be noted that there is one German legal treatise that goes some way to achieving the same end: J. Wolff, Discursus: De Foeminarum in jure civili et canonico privilegiis, immunitatibus et praeeminenta (Rostock: M. Saxo, 1615). In contemporary terms, the notion of "Women's Law" has been resurrected by T. Stang-Dahl, Women's Law: An Introduction to Feminist Jurisprudence (Oxford: Norwegian University Press, 1987), who defines the purpose of women's law as being "to examine and understand how women are considered in law and how the law corresponds to women's reality and needs" (12). See also and similarly, S. Atkins and B. Hoggett, Women and the Law (Oxford: Blackwell, 1985) at 1: "We seek to understand how the law has perceived women and responded to their lives."

[85] See, for example, Swinburne, A Brief Treatise of Testaments at fol. B i b.

[86] Anonymous, Lawes Resolutions at 2.

[87] Ibid. at 403 and 3.

little tediousness as I can."^[88] In this sense the work is an exhaustive catalog of points of law that mention, touch, or affect the different categories, statuses, or faces of the feminine. Such popular intent, however, has deeper roots, for as Selden found in Jani Anglorum , it is not possible to write a constitutional history, let alone list the laws that govern a majority of legal subjects, without becoming aware of the ambiguity or the ethical inconsistency of the tradition. To compile an extended account of the law touching women was to produce a document enfolded in several jurisdictions or laws and of itself a record of peculiar cultural and political significance. The constant theme of the advice offered throughout the treatise was that of the defense of women, the critique of common law, and the manipulation of hostile rules to the benefit of an oppressed class.

Wherever the law could be ameliorated or its application tempered by foresight of feminine need, the Woman's Lawyer offered the means of such fiction or improvement. Heale's example of the lawful right of the husband to beat the wife is confirmed, according to the author, by Brooke's Abridgement , which states that "if a man beat an outlaw, a traitor, a pagan, his villein, or his wife it is dispunishable, because by the law common these persons can have no action."^[89] The reason at law for this disability is both specific, in the form of the precedent cited, and a consequence of the general status of the wife as being in the power of the husband, and so is without independent legal personality for most although not all purposes. It might be noted that by case law also cited in the Woman's Lawyer , a woman prisoner of the "Marshalsey" complained to the court that the "Marshalls man had ravished her in prison. Gascoigne commanded the Marshall to take his man to his custody, and his staff from him, and the Court told the woman, that alone she could not bring appeal, sans son Baron , but if her husband would come, and they two together prove the rape, the ravisher should be hanged."^[90] There is thus no obvious legal solution to the problems of the woman whose husband is violent, either in precedent or in doctrine. The Woman's Lawyer , however, does not limit itself to remarking the woman's bad choice of company. A writ listed by Fitzherbert is cited which states that "she may sue out of Chancery to compell him to find surety of honest behaviour toward her, and that he shall neither do nor procure to be done to her (marke I pray you) any bodily damage, otherwise than appertains to the office of husband or lawful and reasonable correction."^[91] The English Janus gave with one hand what it took away with the other. The Woman's Lawyer remarks that the scope of this power

[88] Ibid. at 3.

[89] Ibid. at 128.

[90] Ibid. at 210 (citing 8 H 4, fol. 21).

[91] Ibid. at 128.

of correction is uncertain, yet continues to observe that "the sex feminine is at no very great disadvantage. . . . Why may not the wife beat the husband . . . what action can he have if she do. . . . The actionless woman beaten by her husband, hath retaliation left to beat him again, if she dares."^[92] The discussion of "lawfulness" is concluded by remarking that if the husband comes to Chancery to compel surety he is unlikely to be heard. While this may well have been good law, it is hard to imagine that it was good or feasible practice in a legal context in which a wife who killed her husband was guilty of the felony of treason, albeit petty treason against the prerogative of the husband.^[93]

The advice offered in the above example would appear to be in part ironic, yet the fact that every section of the work contains similar advice for the woman suggests that in that instance it was more likely despair than flippancy that motivated the sentence. In other segments of the treatise the advice is of obvious purport, and the suggestion of fictions would genuinely change the law. Different transactions, relationships, and threats create different problems for the female "persona" in law and the Woman's Lawyer attempts no one solution or form of exchange for distinctive situations. Thus one chapter of the treatise is devoted to the law on loss of dower, the wife's entitlement in law should the husband die before her: "The rest of the fourth book shall consist most in warnings to widows and women tenants in particular estates, that they do nothing prejudicial to their warrant," namely to the writ of quod ei deforciat which allows a widow to recover dower.^[94] The subsequent chapter lists the various ways in which a widow might lose dower, as by allowing buildings or woods to fall to waste and so threatening the interest of the reversioner, or, if she alienated or made a gift of lands held in dower, the heir could recover.

In respect of other transactions, the woman may or may not retain legal personality according to specific rules. In some instances the advice is trivial or humorous. The widow who takes more apparel than is convenient for her degree is made an executrix de son tort demesne , which is "a troublesome office."^[95] A wife only becomes entitled to dower upon consummation of the marriage and so is advised to leave the wedding party early "and leave out the long measurles till you be in bed. . . . Get you there quickly, and pay the minstrels tomorrow."^[96] More serious advice pertains to the presumption of duress in relation to contracts between husband and wife, the possibility of employing fictions to enfeoff the wife or the husband, and the circumstances under which the crimes of the husband will

[92] Ibid. at 129.

[93] Ibid. at 206.

[94] Ibid. at 305.

[95] Ibid. at 233.

[96] Ibid. at 118.

be visited upon the wife, as when she loses her dower if her husband is outlawed or attainted of felony.^[97] The status of the married woman is that of infant, she loses her property, is incapable of making contracts, cannot sue or bring a writ in her own right, and can neither inherit by nor make a will. At the same time, "in matters of criminal and capital causes, a feme covert shall answer without her husband" unless the crime was committed with the husband or by coercion of the husband, in which case the wife cannot be charged.^[98]

The disabilities and incapacities as well as the rights of women are specific to occasions and transactions. The Woman's Lawyer attempts to situate particular legal relations with regard to their impact upon the female sex. The closest that the work comes to a general account or critique of the law governing women is in relation to the inequality of legal provision in circumstances where difference of sex—however defined—would not appear determinative. Thus the law governing elopement, whereby a woman forfeits her dower for adultery but the husband is immune and is allowed any number of adulterous relationships without forfeiture of land, is criticized. Redress for this inequality should be "by Parliament" and, in the meantime, one had the Christian solace of knowing that "liberty or impunity in doing evil by immodest life or lascivious gallops, is no freedom or happiness."^[99] In suggesting reforms of the law or in berating aspects of specific legal conditions such as the loss of noble status in a woman who marries below her degree, it is not so much the unity "woman" as the fragmentary condition that is the object of critique. The feminine sex of legal subjects should not be "abstruded," smothered, concealed, or "scattered in corners of an uncouth language," but at the same time the Woman's Lawyer does not treat that sex in an undifferentiated way.^[100] Thus, to take one final example, the Woman's Lawyer begins not by defining the classification of all persons into male or female, but rather by listing the seven ages that the woman has for legal purposes. The different legal states of femininity, as maiden, wife, widow, are crosscut by virginity and maternity, but also by age, as, for example, "woman is out of ward for her body [i.e., she can marry] before she is out of ward for her land."^[101] If she marries a man under age, she remains in her father's ward. She may have dower at the age of nine, at twelve she may consent to marriage, at fourteen she may choose a guardian.^[102]

[97] Ibid. at 52, citing Stamford.

[98] Ibid. at 206.

[99] Ibid. at 146. See, for an earlier and equally powerful denunciation of this rule, Agrippa, De Nobilitate at 31.

[100] Ibid. at 403.

[101] Ibid. at 22-23, giving as the reason that she is quickly able domui precesse, vivo subesse .

[102] Ibid. at 23. For further discussion, see, for example, Wood, An Institute at 19.

Gynaetopia, or the Legal Place of the Feminine

The most strikingly contemporary feature of the Woman's Lawyer and of feminine genealogies of law more generally is the uncertainty of the category of women within early legal thought. In Selden's terms, the feminine was both the other face and the particularity of common law. At one level this ambiguity forced law to mix with other literatures and to search the languages of theology, nature, philosophy, medicine, politics, ethics, and the other occult sciences to find some way of characterizing an essentially inessential being. The feminine, however, escaped delimitation—it was both fecund and fluid, image and flesh, ignorant and erudite, illustrious and idolatrous, Justitia and Jezebel, matter and wonder. This sex which was not one, which was lost or "clean abstruded" in the law, was never successfully defined in advance as the querelle des femmes would have intended. Women were not a predicate of law but rather impermanent subjects of legal judgment. A woman was an expression of a legal event, of decisions and discretions, and so was constructed from the various realms of legal experience as opposed to being reflective either of some underlying juridical structure or of the schemata of being that popular sentiment and occult science together intended. For the law, after all, persons were divided between slave and free. Although many women were slaves, in alieni iuris, and indigni, not all slaves were women.

The common law querelle des femmes is symptomatic, in other words, of certain deeper shifts within the structure and reason of English law. Dedicating its political effort to the memory of that "most excellent lawgiver and renowned Queen Elizabeth," whose sovereignty had seen much reform of the law touching women, the Woman's Lawyer intended its minute description or chorographica descriptio of the particulars of English law to act as "a firm bulwark against all manner of injuries that possibly might oppress women."^[103] If it could not embark upon such an endeavor equipped with a preexistent or agreed legal or political definition of women, then it had inevitably to resort either to an immanent description of femininity derived from the infinite particulars of common law or to the generic description of the figures or images of women in the surrounding literature of the querelle . Indeed, literature here came to play the law, and to the extent that it embraced the literary representation of femininity, it did so at times to the benefit of women: it was through figures, presumptions, fictions, and dreams, through the imaginary, the other, the aesthetic, through a certain novel écriture as well as ethical argument that legal change occurred.

Fortescue and Selden derive what may properly be described as an im-

[103] Anonymous, Lawes Resolutions at 401.

age of women from a lost genealogy or historical memory of femininity. It is also, in terms of its representation, under the sign of Polyhimnia,^[104] the femininity of memory as reminiscence, whereby "out of one thing remembered others are discovered."^[105]Jani Anglorum maps the places of women in the repressed, neglected, or forgotten history of common law. It is possible that this narrative of the feminine in common law, of custody or custom as creativity and of tradition as generation, is to some large degree linked to the literary recollection of women, to gynaetopia and its illustrious women. In the City of Ladies it is after all Justice—defined as measure—who comes to the dreamer in 1404 and offers to people the City, the feminine commonwealth with women of reason, prerogative, and honor.^[106] Justice is the third Lady but the chief virtue, and she represents a juridical history of illustrious women. In the ensuing tradition it is not only the task of literary feminism to chart the narrative of feminine excellence and erudition,^[107] it also states the constitutional case for the right and sovereignty of women in the varied spheres of their political experience. In such terms Agrippa, for example, remarks that "the English nation were most ungrateful, should they ever forget their obligations to this sex," or allow "unjust laws, foolish customs, and an ill-mode of education" to continue to usurp their liberties.^[108] For Agrippa, to continue with the same example, women's proximity to generation and reproduction granted them an ontological superiority as well as a mythological sovereignty, for "woman was formed miraculously . . . [and] was the end, and last work of God, and introduced into the world, not unlike a Queen into a royal palace. . . . Man seemed only her harbinger or attendant."^[109] The feminine was here the telos of nature, just as for Selden, Justitia, a woman, was the telos of law.^[110]

At one level it might be argued that this concern with justice as feminine, as an image and end of law, simply spells out in hyperbolic manner

[104] Heywood, Tunaikeion at 313.

[105] Doderidge, English Lawyer at 15 (defining actus reminiscendi as one part of memory intellective).

[106] Christine de Pisan, Cyte of Ladies at fol. C c iii a. See further the prescriptions for gynaetopia in Astell, A Serious Proposal at 40–45; and also the Castle of Fortuna, depicted in Christine de Pisan, Le Liver de la mutacion de fortune (Paris: Picard, 1404, 1959 ed.). For Pisan, justice was anything but blind.

[107] As in Leslie, De Illustrium Foeminarum at 23 ff.; see also Daniel Tuvil, Asylum Veneris, or a Sanctuary for Ladies (London: E. Griffin, 1616); and for a classic study of philosophical women, see Ménage, Historia Mulierum Philosopharum . Most influential in England were Agrippa, De Nobilitate ; Vives, De Institutione; and Elyot, Defence ; all of whom list women philosophers amongst other illustrious women.

[108] Agrippa, De Nobilitate, respectively at 66, 76.

[109] Ibid. at 10–13.

[110] Selden, Jani Anglorum at 4–5. For contemporaneous examples, see Finch, Law, or, A Discourse Therof at 11; Fulbeck, Direction or Preparative to the Study of Law at 2–3.

the formulaic commonplaces of feminist and antifeminist rhetorics.^[111] In this sense, feminist argument, its exaggeration, speculation, and apocryphal histories, would simply represent the externality of the feminine to the legal: the image that is chosen to represent the system of law, the legal totality, would necessarily come from outside it. In Fortscue's terms the likeness of law is not the law itself, and there perhaps is a further reason why in Renaissance iconography the face of justice was blindfolded, self-consciously following a classical tradition of mutilated representations of virtue in which justice would not see the face of the litigants nor they the face of Justitia.^[112] If, as contemporary philosophy suggests, "the face is presence" and command, and so neither metaphor nor figure, a feminine representation that is blindfolded would thereby be disallowed full presence, just as a woman could not command, except by way of exception.^[113] Yet the argument made is that where law sought to be blind, the feminine face of justice looked back so as to see. To consider further the significance of the face to law it is necessary to return to the querelle and to postclassical rhetorics of gesture. In generic terms, "by the outward countenance we do judge of the qualities and disposition. . . . The most pliable part of virtue, is by greatest observance planted in the most proportionate feature."^[114] The outward face is the "judgment of nature," for vultus est index animi, and the countenance and the eye are the signs of the soul. At the same time, as Fortescue and Selden made clear, the face is not without its ambiguities. The face was both likeness and the possibility of illusion, both image and mask or screen of the soul. Thus one critic remarked of the countenance of the common lawyer that "this face seems as intricate as the most winding cause": it was neither infallible as an index nor permanent as a sign of inward disposition.^[115]

The face is also sexed. For the antifeminist literature of the querelle , it was man that was made in the image of God, and it was for this reason that men should neither cover their heads nor hide their faces. Women, however, were not in God's image and were consequently nupta, covert or veiled. For the other side of the debate, the opposite was true: "Shamefastness [i.e., shamefacedness] and soberness be the inseparable companions of chastity, in so much as that she cannot be chaste, that is not

[111] A conclusion arrived at by Maclean, Woman Triumphant at 58.

[112] See Lloyd, Conference of Divers Lawes at 130–131, for a direct expression of this view.

[113] Of the many contemporary analyses of the face, see E. Levinas, Otherwise than Being (The Hague: Nijhoff, 1981) at 89–93; Derrida, Writing and Difference at 100ff.: Deleuze and Guattari, A Thousand Plateaus 167–192; Jardine, Gynesis at 76–79.

[114] Angel Day, The English Secretorie at 121–122.

[115] Head, Proteus Redivivus, respectively at 2 and 256. See also at 53: "The face is the index of the mind; yet experience tells us it is no infallible indicium of the nature or disposition of the person . . . [for] always to see, is not to know."

ashamed: for that is as a cover and a veil to her face."^[116] Nature had, according to Vives, given the veil of shamefacedness so as to clothe and cover the face to the end of picturing virtue and saving those who might look upon its nakedness from lust and from the sin that comes of lust. Agrippa takes the argument further in viewing the female face as the sign of feminine superiority: its nakedness is its virtue to such an extent that the Laws of the Twelve Tables are even said to have provided that women should not shave their cheeks, "lest it might occasion the growth of beards and destroy their nature."^[117] That Justitia was blindfolded might well have a residual connotation of impartiality, but it must also be recognized that in the eyes of contemporaries it would also be likely to be perceived as a veil that rendered a feminine representation of justice an inoperative element in the gaze of law. There could be no face to face of justice nor evidence nor experience of the particular without eyes to see. Indeed, in depicting the judge's decision in the case of succession to a kingdom in De Natura, Fortescue even begins by describing the eyes of the judge, who was also variously, it should be recollected, Justitia, Phronesis, Prudentia, and viva vox iuris : "The judge, keeping silence for no great interval, with downcast eyes (vultu ad yma dismisso ) . . . at length raised his eyes by little and little, and thus in modest style began his discourse."^[118]

The shamefacedness of women was designed to protect men from themselves and to protect them from sin. The blindfold on the face of justice seems plausibly to have also benefited men through the limitation, mutilation—it could also be a bandage—or sensory deprivation of women. The stake of such an effigie, shadow, or image is never innocent. In a secondary sense the blindness of justice can be taken to represent the peculiar folly of common law in its dependence upon the blind reason of precedent and the unseeing eye of an aural or auricular tradition. In common with other critiques of common law, particularly that contemporaneously associated with the English civilians,^[119] the argument would be that without some vision of the peculiarities of parties and the particularities of circumstance and experience, the law has no connection with reality but simply and stupidly repeats past judgments as if they were both reason and law. Such repetition of judgment stipulates the present instance as a predicate of the past instance, without reason, foresight, or ethics. The Woman's

[116] Vives, De Institutione at fol. K i a–b. See further Allestree, The Ladies Calling at 5–7 (discussing modesty and the face); Astell, Reflections upon Marriage at 32 (discussing those that "doat on a Face").

[117] Agrippa, De Nobilitate at 21–22.

[118] Fortescue, De Natura at 321.

[119] See, for a particularly strong example, Wiseman, The Law of Laws at 38–45, discussing the failings of argument from precedent. More generally see Levack, The Civil Lawyers in England.

Lawyer challenges that predication and in constructing the law as it related to the various aspects of women, suggests that it is through the specific character, experience, and reason of judgment, through what the ancients termed synderesis,^[120] that legal personality is formed and the plurality of faces of women are distributed through the institutions and relations that constitute the social world for us.

There is a final argument, one that develops the metaphor of the faces of law and of the legal past. The Baroque notion of retrospection multiplying the images of the past in the same way that a broken mirror proliferates our reflection suggests, as Fortescue and Selden in particular bear witness, a certain ambiguity if not crisis in the relation of the present to the past. Where humanism and historicism relied upon the value of the classical tradition and so adopted a custodial stance to the transmission of that tradition, the common law could not so easily assume a linear progression from antiquity to the legal present.^[121] The pasts of the law were varied in national particulars and in their languages. The common law had no single identity, its polity was plurality and its history Janus-faced. In breaking away from Rome and from the civilian tradition, the common lawyers had to invent a unitary national law and find an image or representation of that unity that could affix an imagined tradition to disparate legal practices. The solution, in the form of an image, an emblem, or effigy of English common law, became that of an immanent, local, and particular tradition based upon precedent, practice, and popular rule. Even in the terms of those that argued most forcefully for the scientific status of English law, this science was based upon a law that was lesbia regula, or pliable rule,^[122] that was made by the infinite uses of experience (per varios usus artem legem experientia fecit ) and was connatural to the people.^[123] This was English justice and it was supposed to express the genius of the people, that of an unbroken, uninterrupted, and unwritten tradition which was reasserted through throwing off the arrogance, abstraction, and indeed the novelty of the civil law. To represent the separate and local features of the common law ironically seemed to require that even the most misogynist of doctrinal writers emphasize the distinctive and particular character of common law in terms of what would then and now be perceived as feminine characteristics. The crisis of the national law, its rebirth in terms of specifically Anglican features, required that it abandon the paternal regulae

[120] In terms of the period in question, see the influential St. German, Doctor and Student at 81.

[121] On the plural and multilingual histories of common law, see, for example, Spelman, Original of the Four Law Terms of the Year .

[122] Sir John Davies, Le Primer Report des Cases & Matters en Ley Resolves et Adjudges in Les Courts del Roy en Ireland (Dublin: Franckton, 1614, 1615 ed.) at sig. 4r.

[123] Ibid. at sigs. 2v–3r.

or rules of Rome and represent instead the poetry and the fecundity, the experience and the antique douceur of common law. It had to turn, in other words, to the second face of the English Janus, which face was that of women: either Fate or Justice, Fortune, Nature, Prudence or Phronesis, as occasion might demand. The emblem of the feminine or at least the attribution of female characteristics allowed the reassertion or even the apparent rescue of common law from the harsh or at least foreign imposition of the civilian tradition. Humanism consistently argued by reference to the "great Ladie of Learning . . . true Philologie" and through her referred to ever earlier, older, or more pristine textual sources.^[124] It was implicit in the philological form of humanistic argument not only that the most ancient source was the true source but also that time and diligence would constantly uncover new antiquities. In short, just as common law was shown to precede Roman law, so other insular laws were shown to antedate the common law. Prior to Edward the Confessor's unification of the kingdoms of Albion into one common law, the philologist could discover several other laws, the regencies of feminine monarchs and before them of venerable goddesses. The priority of antiquity forced the possibility of feminine governance upon the common law, if only as its other face or exceptional past. These were the stories, the feminine genealogies of the greatest antiquity, of an indefinite age of women which was original and so true: "That is truth which is first, that is adulterous which comes after."^[125] It is not surprising in this context that certain common lawyers even went so far as to suggest the recognition of feminine difference in the positive form of political suffrage, civil and domestic rights. Insofar as elements of common law changed, it is not incorrect to say that legal events altered the "relative or civil" definitions of women.^[126] It is also plain that such civil definitions of feminine status were relative to male governance and relative further to the loss or repression of the feminine genealogies that Renaissance lawyers had briefly recollected. To understand that failure, loss, or forgetting of a specific history and its texts it is necessary to return again to the question of difference.

Conclusion: The Jurisprudence of Difference

The simultaneous praise and denigration or assimilation of the feminine has traditionally been played out over a series of ambiguous and often

[124] Selden, Historie of Tithes at xix.

[125] Favour, Antiquitie Triumphing over Noveltie at 39–40. (Id est verum quodcumque primum, id est adulteram quodcumque posterius.)

[126] Wood, An Institute at 17 advocates that the law of persons consider persons in "their Natural , and in their Relative and Civil capacities."

antagonistic metaphors. Women, in the theological language that underpinned the ecclesiastical law, were images, surfaces, or screens that lacked substance and depth. The feminine was empty and dissimulated or hid its emptiness through "sophistic reasoning and carnal pretence."^[127] More than that, the feminine transgressed the orders of nature and like the plastic image polluted the spirit by confusing it with sense. In one respect this reference to sense was a mark of the contingency under which the feminine traveled. Contingency implied the realm of the inessential, of the aesthetic, the floral,^[128] the inconstant, the gustatory, ornamental, and emotive, but also, by virtue of the particularity of the contingent, the feminine symbolized justice, the law of the event and of the parties to dispute. In this latter aspect, the feminine was a sign of contingencia or touch, of a materiality, historicity, locality, or relation that theology and ecclesiastical law often labeled unclean or polluted, of sense and flesh and earthly pleasure (erato ).^[129] The belief that "the feminine power prevailed in Heaven" was even listed in the Repertorium Canonicum as the heresy of the Sethiani.^[130] Women, by having no fixed value, by virtue of their uncertainty and ephemerality as also by virtue of their worldliness or reproductive force, were a threat not simply to the temporal order of political sovereignty but also to the logic of a common law that inherited both Roman and ecclesiastical conceptions of universalia and with them the notion of lawful meaning as a transcendent or spiritual property of eternal decrees and the reign of a reason that moved from like to like within the inexorable realm of the same.^[131] The belief in contingent values and in the arbitrary temporal power of fortune and fate, were pre-Christian elements of a Stoic philosophy which natural law had specifically replaced. "Experience," in the words of one influential lawyer "which is wholly gained by the observation of particular things is slow, blind, doubtful, and deceivable, and truly called the mistress of fools."^[132] This mistress has an ambivalent and charged position in common law. As Fortescue had earlier remarked, it was experience—induction—which "by the assistance of the senses and the memory" discovered law.^[133] It was the vernacular experience of the leges terrae which

[127] Parker, A Scholasticall Discourse against Symbolizing at 10.

[128] On the "misteries of Flora, " see Lloyd, A Briefe Conference of Divers Lawes at 12; and more broadly on flowers, see Puttenham, Arte of English Poesie.

[129] For striking theological examples, see particularly Parker, A Scholasticall Discourse against Symbolizing at 7–8, 14–17, 19–21; Sander, A Treatise of the Images ; Hammond, Of Idolatry at 7–9, 12–13. This literature is discussed in greater detail in Goodrich, "Antirrhesis."

[130] Godolphin, Repertorium Canonicum at 582.

[131] On the universalia of law see J. Fortescue, De Laudibus Legum Angliae at 13–14; see also Ernst Kantorowicz, "The Sovereignty of the Artist: A Note on Legal Maxims and Renaissance Theories of Art," in Ernst Kantorowicz, Selected Studies (New York: J. Augustin, 1965).

[132] Doderidge, English Lawyer at 240.

[133] Fortescue, De Laudibus Legum Angliae at 13–14.

the Anglican judges had to apply and which differentiated common law from civil law, England from Rome.^[134] The common law had to assert a certain femininity, a reliance at least upon the mistress of experience, to identify itself as a separate form of law. Common law was like a woman, but likeness was not essence, similarity was not identity, and so experience remained a medium but not a source of law. To experience, which is characterized doctrinally as a feminine vice and opposed to the speculations, regulae , and maxims^[135] of the universal law, might be added contingency and materiality as such. The vice of femininity was precisely its nature, its plurality, both its diversity and its ability to reproduce, both its inconstancy over time and its production of difference.^[136] As one study has recently detailed, the category of the feminine in law was not simply plural, its attributes changed with time and historical circumstance. The virtues of the feminine might later be the attributes of the masculine, the value of contingency might latterly be the criterion of reason or the source of law, for nothing was certain in the realm of experience nor was anything constant where a feminine reason threatened to play the role of law.^[137]

The argument traced through the texts suggests that there was no singular category of woman, and as Sir Robert Filmer argued of the law in a rather different context, "there is great difficulty in discovering, what or who a [woman] is."^[138] The plurality of concepts and usages of "woman" range from the female as an image or, worse, an idol in puritanical legal thought, the bearer of diabolical powers, soothsayer and magician, to the praise of illustrious women, female gods, muses, and lawmakers whose soul and reason is indistinguishable from or even superior to that of men.^[139] There is no common essence to the various categories of women, nor indeed is there any common definition of women in law.^[140] The "feme sole"

[134] See Fortescue, De Natura at 205–206: "Even the judges are bound by their oaths not to render judgment against the laws of the land [leges terrae ]," and similarly, see Selden, Ad Fletam Dissertatio at 173.

[135] See, for example, Noy, Grounds and Maxims of the English Law at fol. D 3 b: "Every maxim is a sufficient authority to itself; and which is a maxim, and which is not, shall always be determined by the judges, because they are known to none but the learned." More broadly on this point, see Wiseman, The Law of Laws.

[136] On which, in philosophical terms, see Irigaray, Speculum of the Other Woman , especially 227–240; Irigaray, This Sex Which is Not One , chs. 2 and 6.

[137] Schroeder, "Feminism Historicised," particularly at 1143–1147, 1214–1217, indicating that at certain points in history, the values currently experienced as "uniquely female" were experienced as "uniquely male."

[138] Filmer, An Advertisement .

[139] See, particularly, in an English context, Agrippa, De Nobilitate ; Elyot, The Defence of Good Women ; Leslie, De Illustrium Foeminarum .

[140] See Riley, Am I That Name? ; Cornell, Beyond Accommodation ; Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990); Suzanne Gibson, "The Structure of the Veil" (1989) 52 Modern Law Review 420.

may share certain attributes of the married woman or "feme covert." The concubine may be granted certain aspects of the legal recognition of the wife. Unmarried women may in certain respects resemble the dowager lady. But the differences between statuses, between having a will and the civil death of marriage, between being sui iuris and alieni iuris , namely between being in the potestas or power of the husband, or of the father and having independent status at common law, between the figure of women as indigni in the ecclesiastical law of succession, the detior conditio of civil law and the exclusion of women from office in a Salic law that many considered to apply also in England, are too great to allow for the construction of any single concept of the feminine. For the purposes of the ecclesiastical law on witchcraft it should be noted finally that even the civil law test of gender, as adopted by Bracton from the Digest^[141] to distinguish the sex of the hermaphrodite, was inapplicable in that it was precisely the power of the witch to work wonders (mirum ), to deceive the eye and so to appear in the form of the dead or the masculine or animals that constituted both an office and a proof of being a witch.^[142]

The latter example indicates both the power and threat constituted by femininity and its difference. To recollect the texts of feminine genealogies is to recollect an order of difference, a separate terrain and time of feminine kinship and regency approximating in myth or historical narrative to early law. In terms of legal history the speech or mythology of female deities and women lawgivers had the status either of fabulous (and idolatrous) tales or, in Heywood's words, they were "a fantasme, or an apprehension of an imaginarie thing" whose essence could not lawfully be sought.^[143] The negative connotations of difference linked the mythology of feminine genealogies to inconsequence or to heresy within the normative gaze of a common law that owed much to its ecclesiastical derivations. Under the category of difference were listed all the figures of exclusion, while the place of feminine difference was aligned with the gynaeceum , with the private, with the infantile, with impermanence and fantasy.^[144] It remains to be argued that returning, as this text has endeavored, to the mythologies of femininity in the ancient customs of common law may yet

[141] Digest 1.5.10: "With whom is a hermaphrodite comparable? I rather think that each one should be ascribed to that sex which is prevalent in his or her make up."

[142] Perkins, A Discourse on the Damnable Art of Witchcraft at fols. 6 a–b, 22 a–27 b. For legislation and writs, see Coke, Book of Entries .

[143] Respectively, Selden, De Diis Syris II at 140–146, and Heywood, Tunaikeion at 2–3.

[144] For a legal definition of the gynaeceum , see Alciatus, De Verborum Significatione at 204 and 229. It should also be observed of the gynaeceum that it was there the duty of the woman to teach virtue, as indicated, for example, in S. Champier, La Nef des dames: Vertueuses composée par Maistre Simphorien Champier (Paris: n.p., 1515) at bk. II, ch. xix.

prove to be an important resource for feminist critiques of common law. Difference, or the uncertain surface, the image, subjectivity, contingency, and indeterminacy—the "inchaunting void"—of the diverse figures of femininity may prove to be a positive resource for the reform of law.

For early feminine critiques of law, the difference of the feminine was a powerful argument for a separate and positive status and law for women. La Cité des dames proposed a literal gynaetopia , a castle (fortuna ) or a community of virtuous women kept separate from the world of men so as to pursue their virtue and their talents, to read, to learn, and to educate in female commonality free from the demands and the degradations imposed by the medieval world. In A Serious Proposal to the Ladies , Mary Astell later makes a similar suggestion. The proposal was to establish institutions for women, similar to religious houses, in which women could retreat from the world to a discipline, education, community, and charity of their own. The purpose of this gynaetopia was also political. It aimed to "amend the present and improve the future age."^[145] The regime of the community was again to be scholarly and studious, it would endeavor through learning to expel the "cloud of ignorance which custom has involved us in . . . that the souls of women may no longer be the only unadorned and neglected things."^[146] The proposal thus aimed to establish the value and the worth of women, to promote a philosophy of the feminine as well as a society dedicated to the furtherance of the education of its own sex. The regime of this collectivity was to reflect a society "whose soul is love" and whose kinship was friendship.^[147] In a practical and political manner, the proposals of gynaetopias suggest a species of return to what Irigaray term forgotten feminine genealogies or "to certain ancient but very advanced traditions in which it was the women who initiated the men into love" and into the relationships and subjectivities, the politics and the civilities of eros .^[148]

In a series of recent texts contemporary feminists have suggested a return to the politics of difference. At one level the argument has been that it is essential to recognize and give space both to feminine difference and to differences within the feminine. Thus legal feminists have taken up the cause of a right to subjectivity, to care, and to relationship that emerged from a psychological study of the "different voice" of the feminine.^[149] In

[145] Astell, A Serious Proposal at 40.

[146] Ibid. at 48.

[147] Ibid. at 81 and 91.

[148] Irigaray, Le Temps de la différence at 103–105. See also Irigaray, J'aime à toi at 210–222.

[149] Particularly, C. Gilligan, In a Different Voice (Cambridge, Mass.: Harvard University Press, 1982). For criticism of that study, see Joan Williams, "Deconstructing Gender" (1989) 87 Michigan Law Review 797. See also Joan Williams, "Feminist Discourse, Moral Values and the Law—A Conversation" (1985) 34 Buffalo Law Review 11. For a series of stronger arguments in relation to difference and law, see Angela Harris, "Race and Essentialism in Feminist Legal Theory" (1990) 42 Stanford Law Review 581; Patricia Cain, "Feminist Jurisprudence: Grounding the Theories" (1990) 4 Berkeley Women's Law Journal 191; K. Crenshaw, "A Black Feminist Critique of Antidiscrimination Law and Politics," in D. Karys (ed.). The Politics of Law (New York: Pantheon Books, 1990).

a more sophisticated vein, feminist jurisprudence has asserted the need to allow a rhetoric or writing of the feminine, a speech authentic to feminine differences and so also a series of rights and legal protections for the sphere, space, time, or speech of femininity.^[150] Utilizing the much frequented Sophoclean tragedy of Antigone , an argument is made for an "other" law of the feminine which respects nature and spirit, ecology and divinity, "for in that time of feminine legal right, civil order was tied to respect for the gods and the civil and religious powers were not yet dissociated."^[151] The recourse to tragedy, to the dramatic representation of myth, is in effect a recourse to a series of political demands for respect for and guarantees of difference. In place of the demand for equality or for the legal right to be the same, Irigaray, for example, argues for an urgent and simple series of juridical reforms designed to establish a sphere of objective legal protections for feminine difference, namely for a separate legally protected identity and full civic personality for the feminine and for the plurality which the feminine represents. The domains of sexually engendered identities and rights would reconstitute the law of persons according to a primary difference, that of sex: "Out of fidelity to sexual liberation and to the changes in the political horizon which it provoked, and further to permit a cultural cohabitation between the sexes, it is necessary to endow both women and men with rights corresponding to their respective needs."^[152]

The legal right to difference, to a juridically protected sphere of autonomous feminine differences, would require a considerable rewriting both of law and of legal method. In an immediate sense the right to a separate legally guaranteed civil identity ranges from protection of the physical, moral, and imagistic personalities of women, to genuine maternity rights free of economic, ideological (conjugal), or institutional constraints, and a right to a culture, to languages, religions, arts, and sciences appropriate to the autonomy of feminine identities.^[153] In a broader sense it is ar-

[150] For philosophical discussion of such rights, see Julia Kristeva, "Women's Time" (1981) 7 Signs 13; Cixous and Clement, Newly Born Woman ; Hélène Cixous, Coming to Writing (Cambridge, Mass.: Harvard University Press, 1991).

[151] Irigaray, Le Temps de la différence at 83. For a more detailed discussion, see Luce Irigaray, Éthique de la différence sexuelle (Paris: Editions de Minuit, 1984) at 114–124.

[152] Irigaray, J'aime à toi at 205.

[153] On the latter right, see also Irigaray, Marine Lover of Friedrich Nietzsche. Also important in the discussion of cultural rights and literary styles was Jacques Derrida, Spurs: Nietzsche's Styles (Chicago: Chicago University Press, 1979). In terms of legal feminism, see the discussion in Mary-Joe Frug, "A Postmodern Feminist Legal Manifesto" (1992) 105 Harvard Law Review 1045.

gued that civil law needs to be reformed so as to take account of the participation of two autonomous persons, two sexes, two genres, in love as also in the other relations of private and public life.^[154] Essential to this transformation is a recognition of rights of speech, a recognition of the other as an irreducible source of meaning, a recognition that would entail a certain respect for the mythologies, the languages, the figures, and the fictions of feminine genealogies not only in the texts of law but equally in the law of texts. The argument that underpins much of this move to a jurisprudence of difference is one of a direct and politically compelling sense of the significance of law in the reconstruction of sexual ethics. It is the curious dialectic of the present analysis to suggest that the identity of the feminine and the "objective rights and laws" which are to guarantee its autonomy are also the sites of the disappearance of any singular identity or unitary essence of the feminine. What is left, at least in theory, is the right and speech of women identified with a lineage or genealogy of law and of meaning which transmits from mother to daughter as well as from father to son. In this context the forgotten history of feminine genealogies and of various gynaetopias can offer a juridical narrative of the feminine genre and a language of difference as a practical sign of reciprocal right. Without embarking upon details of legal substance, the model of one law faced by or in juxtaposition with another is one of the oldest and most interesting of the histories of common law. One law on the other was the history of utrumque ius , the relation of the ecclesiastical to the "profane" jurisdictions and of the spiritual to the secular laws. At various points in the history of the relation between jurisdictions, the same civil transaction, for example, would be tried before both spiritual and secular courts, either pro laesione fidei or upon a temporal contract, and would be decided according to two separate laws, according to faith and corporal penance and according to profane law and its monetary compensations. The two jurisdictions dealt with two significantly different realities and adopted quite separate procedures and forms of knowing.^[155] There is no reason, either in history or in doctrine, why different laws cannot govern different genres, separate statuses, or the plural identities of legal persons.

[154] Irigaray, J'aime à toi at 207.

[155] For an excellent discussion of the ecclesiastical practice, see Cosin, An Apologie at 51–58. See further Stillingfleet, Ecclesiastical Cases ; Consett, Practice of the Spiritual or Ecclesiastical Courts . In explicitly feminist terms, see Mary-Joe Frug, "Re-Reading Contracts: A Feminist Analysis of a Contracts Casebook" (1985) 34 American University Law Review 1065; also Mary-Joe Frug, "Rescuing Impossibility Doctrine: A Postmodern Feminist Analysis of Contract Law" (1992) 140 University of Pennsylvania Law Review 1029.

When the common lawyers greedily took exception to or challenged ecclesiastical causes in the name of the vernacular law, they nonetheless "pretended to ground themselves . . . not only on the laws of the realm but upon God's law also, the civil, the canon, or ecclesiastical law, and upon equity and reason."^[156] The arrogation of the "ghostly power of the Church and of Ecclesiastical persons" to common lawyers occurred in practice over the course of somewhat more than a century and it did so within varied and most usually polemical contexts.^[157] It was primarily important for the common law not to have its jurisdiction challenged by the Courts of Conscience, and it was from early on a "contempt" for ecclesiastical judges to deal with a matter appertaining to the temporal courts.^[158] While certain parochial or institutional matters remained within the spiritual jurisdiction, the common law took over the governance of conscience, of attachments or affectivities, of the passions, of interiority and its development. Common law, however, had neither the imagination nor the procedures to deal with conscience or spiritual matters as anything other than accidents or effects of an arbitrary political expansion of royal power. While it would make little sense to invoke the ecclesiastical jurisdiction over interiority as anything other than a formal model of plurality of jurisdictions, procedures, and substantive rules, there are also a variety of jurisprudential significances to that plurality. It is salutary to recollect the diversity of jurisdictions as a repressed dimension of common law as a method of judgment and to recollect that within the tradition there already existed a court of conscience, a ghostly or spiritual jurisdiction in excess of the contemporary antipathy to anything but positivized legal rules. An early discussion of the dual jurisdiction, Justice Vindicated , observes laconically of the dual jurisdictions that "it is a miserable servitude, where the law is wandering or unknown [misera servitus, ubi ius est vagum aut incognitum ]."^[159] Adopting that metaphor, the next chapter, will utilize elements of the contemporary model of interpretation of that which has wandered or is unknown, namely psychoanalysis, to pursue the images within law's texts, the figures of a law within law. While the figure of unknowing itself belongs, at least in modern demarcations of the disciplines, to psychoanalysis, it will be argued that where it is a question of reading legal texts or interpreting judgments as the cultural work of the legal institution, then rhetoric is the older and more rigorous of the interpretative disciplines.

[156] Cosin, An Apologie at fol. A 3 a; Consett, Spiritual or Ecclesiastical Courts at fol. A 2 b: "That our ecclesiastical laws professed in this land, have lain, and at this time, do lie under most unjust and severe imputations, I am very sensible."

[157] Coke, Justice Vindicated at 21.

[158] Cosin, An Apologie at 40.

[159] Coke, Justice Vindicated at 42.