The Public Defense
of the Doctoral Thesis in Medieval Studies
by
Jurgita Kunsmanaitė
on
PROVISIONS FOR WIDOWHOOD IN THE LEGAL SOURCES
OF SIXTEENTH-CENTURY LITHUANIA
will be held on
Thursday, 26 February 2009, at 14:00
in the
Monument Building, Room 201
Central European University (CEU)
Nádor u. 9, Budapest
Examination Committee
Chair
Lajos Rácz (Department of History, CEU)
Members
Katalin Szende - PhD supervisor (Department of Medieval Studies, CEU)
János M. Bak, Emeritus (Department of Medieval Studies, CEU)
Gerhard Jaritz (Department of Medieval Studies, CEU)
Judith A. Rasson (Department of Medieval Studies, CEU)
External Readers Grethe Jacobsen (The Royal Library, Copenhagen)
Giedrė Mickūnaitė (Vilnius Academy of Fine Arts)
The doctoral thesis is available for inspection
in the CEU-ELTE Medieval Library, Budapest, 6-8 Múzeum krt.
Abstract
This dissertation is on the property status of the mid-sixteenth century Lithuanian
noble widows and their relation to the family property in sixteenth-century Lithuania.
The time frame chosen for the research is the time period between the First
Lithuanian Statute of 1529 and the Second Lithuanian Statute of 1566. The materials
used in the research are the sources of the normative law (the First Lithuanian
Statute, the Second Lithuanian Statute, the ducal privileges and the decrees of the
Council of Lords) and the records of legal practice (judicial records from the
Lithuanian Metrica, the collection of the records of the chancery of the Grand Duchy
of Lithuania). The dissertation concentrates on the analysis of the two coexisting
legal models: the contractual provisions and the legal provisions. Under contractual
provisions, I mean dower contracts, testaments and mutual donation of the property
between the spouses. Under legal provisions, I mean basic rights, guaranteed for all
widows, enshrined in law and applicable without any special arrangements or
agreements. My aim was to trace the development of these two legal models, to
compare them, and to see their reflection in the legal practice.
Classification of the legal norms into those belonging to the legal provisions
and those belonging to the contractual provisions has shown that both the legal and
the contractual provisions have many features in common. According to both types of
provisions, the status of a widow depended first of all on her marital status and the
age of her children. The dowered widows were essentially entitled to the return of the
equivalent of their dowry plus some of the husband’s property, usually for life, as
well as to some movables of the husband, if indicated so in the testament. That is, a
widow took back what she had brought in and received some of the husband’s
property only for life or until remarriage. The non-dowered widows were entitled to a
share of property for life, essentially similar to the share received by the dowered
widows. Although in the scholarship one opinion is that the non-dowered widows are
left with nothing, I would argue that they are left with none of the husband’s property
rather than nothing. As some laws and some legal practice show, the non-dowered
widows before the Second Lithuanian Statute were probably entitled to a dowry: that
is, as a result, they also got back what they had brought into the marriage. The only
clear advantage of the contractual provisions was that widows with such provisions
could hope to hold some of the husband’s immovable property with ownership rights.
The coexistence of the two different models may be explained by the
contractual provisions being easier to reinforce than the legal ones. With the
spreading of written culture, various forms of contracts were gaining more power,
and with the widening of the freedom of testamentary inheritance, contractual
provisions enabled people to express their will in a more specific way. These could
be some factors which determine and explain the appearance and the strengthening of
the institution of dower: as court records show, the non-dowered widows were few,
with the dower contract being the main form of the providing for widowhood.
However, it does not explain why such detailed legal provisions survived in the
normative law and why they changed simultaneously. My explanation for this is that
the dower was no mandatory, thus legal provisions remained in power. Testaments
never became mandatory either, with the property division according to the law
always remaining in power. Thus the dower – which in practice often was a subsection of testamentary inheritance, with the dower being assigned by a testament –
also was not mandatory. And thus legal provisions kept being adapted to the
contractual provisions in order to preserve similar conditions for all widows and all
children in the same position, guaranteeing them the same rights, regardless of the
presence or the absence of the contractual provisions.
As regards the analysis of the changes in the normative law, the main change
was that regarding the size of the dower. Here, my main finding is the
interconnection of the dower laws with general laws regarding the disposal of
immovable property. Between the two Statutes a widow could receive up to one third
of the husband’s ancestral and earned lands. Before, the size of the dower was not
strictly defined. This clearly follows the development of the general laws concerning
the ownership of the immovable property. When the change appears in the general
laws – that is, the disposal of the immovable property is limited – the same is
reflected in the laws concerning the dower. That is, if the husband can dispose freely
only of one third of his property, then he cannot assign more of it to his wife as a
dower. The disposal of the immovable property was not limited for long and was
cancelled in the Second Lithuanian Statute, due to pressure from the nobility.
However, the restriction on the size of the dower remained in effect, but it gained a
different meaning: if between the two Statutes it meant the maximum that a widow
could get as a dower, now it marked a minimum that a widow would receive if a
husband assigned her a dower.
As regards the differences between the normative law and the legal practice, in
main features the decisions of the court conform to the normative law, with some
exceptions. The court decisions sometimes claim to rely on the Statute, and
sometimes on the custom: this was fully permissible, as the First Lithuanian Statute
itself allowed the court to rely on the customary law if the norm was missing from the
Statute. Testaments and dower contracts, quoted in the court records, reveal that
when assigning the property to their wives the husbands in large follow the normative
law, but certain testamentary freedom allowed many variations within the prescribed
limits. The testament was not only the means of assigning or confirming the dower,
but also an opportunity for the husband to leave all or some of his purchased and
movable property to the wife. As the court cases of the Lithuanian Metrica show, this
was practiced quite extensively, with some testaments containing various restrictions
on the management of the property that the husbands assigned to their wives, and
some testaments entitling the widow with extensive ownership rights to the purchased
and movable property of the husband. Donations of the property to each other
between the spouses, probably a Polish influence, were another way of giving
property to the wife.
The analysis of the normative law and legal practice also allowed to note some
more general points regarding the status of widows in Lithuania in the first part of the
sixteenth-century. Because of the variety of the options available in the normative
law, the status of widows could vary a lot: from as little as being left with only their
own separate property, if any, to as much as not only receiving a substantial dower,
but also all that the husband could dispose freely of. In many instances, the position
of the widow depended much not on the law, but on the family circumstances,
generosity of the husband, kindness and helpfulness – or animosity and greediness –
of the children. Although the law provided most of the necessary norms establishing
the rights and duties of widows, the society was not always able to reinforce these
rights.
The situation of the Lithuanian widows is comparable to those in other
European countries. As regards comparison to the closest neighbours from the ethnic
point of view, the few surviving Prussian norms reveal some similarities with the
early Lithuanian norms on widows. As to the Russkaja Pravda of Kievan Rus’, there
also are some similarities with the early Lithuanian laws; this is result of parallel
development and possibly some indirect rather than direct influence. The influence of
the Polish laws is, on the other hand, undeniable, the concepts of the veno and venets
being influenced by the Polish law. Due to this influence, the status of Lithuanian
widows is most similar to that in Poland, where the contractual provisions were the
dominating means of providing for widowhood.
As regards other countries, there the means of providing for widowhood could
be very different. Everywhere, both the legal and the contractual provisions were
available for widows, with the emphasis falling on the contractual provisions in some
countries and on the legal provisions in some other. In all countries, the marital status
and the parental status of a widow was taken into consideration. Everywhere
remarriage or having minor children meant a different status: more restricted amount
or the rights to the property of the husband in the first case, and much wider rights
and access to the husband’s property in the second. In general, widows in some form
received back what they had brought into marriage or were compensated for it. A
share of the husband’s ancestral property normally was given to widows only with
usufruct rights, and the acquired property could be shared. My opinion is that,
although the widows’ legal options differed quite considerably from country to
country, various types of agreements, such as marital contracts and testaments,
equalled this situation out to a great degree, and widow’s situation probably depended
more on personal relationships of the spouses than on legal prescriptions.
To summarise the main finding of this dissertation, evaluating my contribution
to the research in this field, they are as follows: the connection of laws on disposal of
land with dower laws; the re-evaluation of the status of the non-dowered widows; the
detailed comparison of different legal models, with a conclusion that they coexisted
because the contractual provisions were not mandatory; some further analysis into
court records, with a conclusion that the legal practice followed the normative law in
very a flexible way; placing Lithuania into wider European context.
CURRICULUM VITAE
Jurgita Kunsmanaitė
ADDRESS
Dociškių 24-16
Vilnius, Lithuania
Tel.: +370 61725973
E-mails: mphkuj01@phd.ceu.hu; j.kunsmanaitė@gmail.com
EDUCATION:
2003-2009 PhD student, Medieval Studies (CEU, Budapest, Hungary)
2001-2002 BA programme Icelandic for Foreign Students (University of Iceland,
Reykjavik, Iceland)
2000-2001 MA, Medieval Studies (CEU, Budapest, Hungary)
1998-2000 MA, Scandinavian Philology (Swedish) (Vilnius University, Vilnius,
Lithuania)
1994-1998 BA, Scandinavian Philology (Swedish) (Vilnius University, Vilnius,
Lithuania)
TEACHING EXPERIENCE AND RELEVANT WORK EXPERIENCE:
Jan-Feb 2006
“Family, Property and Law” (CEU, Budapest, Hungary)
2003, 2004 Publication and editorial practices (CEU Annual)
SCHOLARSHIPS:
2003-2006 Full CEU fellowship for PhD (CEU, Budapest, Hungary)
Fall 2005 Doctoral Research Support Grant (CEU, Budapest, Hungary)
2001-2002 Icelandic Ministry of Education, Science and Culture scholarship (University
of Iceland, Reykjavik, Iceland)
2000-2001 Full CEU fellowship for MA (CEU, Budapest, Hungary)
Spring 2000 Swedish Institute scholarship (University of Uppsala, Uppsala, Sweden)
LANGUAGES:
Lithuanian (native)
English: fluent written and spoken
Russian, Swedish, Old Ruthenian: fluent reading
Polish, Icelandic, Norvegian, Danish, Latin: fair reading
PUBLICATIONS:
Kunsmanaitė, Jurgita. “The Legal Status of Female Guardians in 1530s Lithuania.” In
Less Favored – More Favored: Proceedings from a Conference on Gender in
European Legal History, 12th – 19th Centuries, September 2004, ed. Grethe
Jacobsen, Helle Vogt, Inger Dübeck and Heide Wunder. Copenhagen: The Royal
Library,
2005.
At
http://www.kb.dk/export/sites/kb_dk/da/publikationer/online/fund_og_forskning/do
wnload/A13_Kunsmanaite.pdf.
________. “Lithuanian Widows in Land Privileges before 1529.” In Annual of Medieval
Studies at CEU 12, ed. Katalin Szende and Judith A. Rasson, 163-179. Budapest:
Central European University, Department of Medieval Studies, 2006.
________. “Widows, Property and Law in Lithuania and Some Other Countries.” In
Regional Variations of Matrimonial Law and Custom in Europe, 1150-1600, ed.
Mia Corpiola. Medieval Law and Its Practice, ed. John Hudson. Brill, forthcoming.
________. “Women Marrying to Foreigners in Laws of the Sixteenth-Century Lithuania.”
In proceedings of the conference Gender, Family and Oroperty in Legal Theory
and Practice: the European Perspective from 10th-20th Century. Under the Aegis
of the Department of History & Archaeology, University of Crete, 21-23 September
2006. Forthcoming.