The Criminalization of Abortion in the West

The Criminalization of Abortion in the West: Its Origins in Medieval Law

Wolfgang P. Müller
Copyright Date: 2012
Edition: 1
Published by: Cornell University Press
Pages: 280
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  • Book Info
    The Criminalization of Abortion in the West
    Book Description:

    Anyone who wants to understand how abortion has been treated historically in the western legal tradition must first come to terms with two quite different but interrelated historical trajectories. On one hand, there is the ancient Judeo-Christian condemnation of prenatal homicide as a wrong warranting retribution; on the other, there is the juristic definition of "crime" in the modern sense of the word, which distinguished the term sharply from "sin" and "tort" and was tied to the rise of Western jurisprudence. To find the act of abortion first identified as a crime in the West, one has to go back to the twelfth century, to the schools of ecclesiastical and Roman law in medieval Europe.

    In this book, Wolfgang P. Müller tells the story of how abortion came to be criminalized in the West. As he shows, criminalization as a distinct phenomenon and abortion as a self-standing criminal category developed in tandem with each other, first being formulated coherently in the twelfth century at schools of law and theology in Bologna and Paris. Over the ensuing centuries, medieval prosecutors struggled to widen the range of criminal cases involving women accused of ending their unwanted pregnancies. In the process, punishment for abortion went from the realm of carefully crafted rhetoric by ecclesiastical authorities to eventual implementation in practice by clerical and lay judges across Latin Christendom. Informed by legal history, moral theology, literature, and the history of medicine, Müller's book is written with the concerns of modern readers in mind, thus bridging the gap that might otherwise divide modern and medieval sensibilities.

    eISBN: 978-0-8014-6415-7
    Subjects: History

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-viii)
  4. Abbreviations
    (pp. ix-xiv)
  5. Introduction
    (pp. 1-19)

    This book is concerned with the historical processes by which, over the course of the High and later Middle Ages, abortion as such—or what in American English denotes the termination of a pregnancy at the will of the pregnant woman herself—came to be treated as worthy of criminal punishment. To find the act for the first time identified as a “crime” in the modern sense of the word one has to go back to the writings of twelfth-century teachers at the emerging schools of ecclesiastical (or canon) and Roman law in the northern Italian city of Bologna. It...

  6. Chapter 1 The Earliest Proponents of Criminalization
    (pp. 20-44)

    From a modern Western perspective, it may appear as if present-day notions of crime existed at all times. The need to prosecute particularly heinous acts must have been felt throughout history, sustained by sentiments that transcended specific cultural contexts. What changed in between periods was at best the desire to exclude lesser forms of deviant behavior from criminal retribution, whereas public authority never ceased to demand accountability for wrongdoing serious enough to threaten the foundations of any social order. Hence the constant reiteration of age-old norms such as the biblical Ten Commandments (Exodus 20:2–17; Deuteronomy 5:6–21), categorically imposing...

  7. Chapter 2 Early Venues of Criminalization
    (pp. 45-75)

    When twelfth-century intellectuals in the wake of Gratian transformed the refinement of ecclesiastical and secular law into successful professional pursuits, they took advantage of an opportunity for which there had been insufficient promise just a hundred years earlier. What allowed them to prosper was that they could act in alliance with newly emerging political forces that also drew on ideas of downward justice as the central tenet of their reasoning. After half a millennium of relative dormancy, interest in absolute and nonnegotiable punishment such as exile or death for abstract categories of wrongdoing including homicide rapidly gained in popularity and...

  8. Chapter 3 Chief Agents of Criminalization
    (pp. 76-99)

    Recent textual discoveries by Anders Winroth and his colleagues have shed much light on the inconspicuous and workmanlike atmosphere in which Gratian put together his compilation of sources for the scholarly study of church law. The founding father of the new academic discipline certainly envisioned his Decretum to be a homemade pedagogical tool, introducing students more effectively than previous canonical collections to the art of adjudicating ecclesiastical court cases. Still, the idea of presenting the normative tradition comprehensively and within an organizational scheme that would instruct readers how to establish, through intellectual effort, harmony and concordance between seemingly discordant canons...

  9. Chapter 4 Principal Arguments in Favor of Criminalization
    (pp. 100-122)

    Twelfth-century scholasticism, whether personified by French theologians, Bolognese professors of Roman law, or Gratian and his decretist successors, was unanimous in its adherence to the theory of successive animation, which, briefly put, divided fetal existence into several phases of development. Central to the reflections of academic lawyers and moralists was the question of when the fetus was joined by the human soul ( anima rationalis). The event was believed to occur weeks or months after conception, superseding prior and lesser forms of fetal life and sustained first by a vegetative and then by an animal stage of prenatal growth. God,...

  10. Chapter 5 Objections to Criminalization
    (pp. 123-148)

    In the prescriptive sources of the later Middle Ages, there is a massive preponderance of statements that treat abortion as a serious crimen. A carefully crafted rhetoric of condemnation, first formulated coherently at the twelfth-century schools of law and theology, spread from the academic centers in Bologna and Paris to places throughout Latin Christendom. Proliferation of the message depended on the professed and ordained ministers of the church. Textual transmission guaranteed that laypersons received uniform instruction about sinning in the form of sermons and penitential manuals, whereas priests, nuns, and monks were further subjected to a streamlined set of disciplinary...

  11. Chapter 6 Abortion Experts and Expertise
    (pp. 149-170)

    Modern Westerners readily accept the idea that current medical practice differs greatly from the healing techniques of the later Middle Ages. Knowledge about the human body has accumulated in ways that make earlier learning seem less impressive, if not outright primitive. It was not until the mid-twentieth century that scientific and technological advances allowed for the routine termination of pregnancies. Only since the 1950s have operations been conducted in specialized and specifically accredited hospitals, and a wide consensus has built up among practitioners that the physical risk for aborting patients should be minimal. By contrast, women carrying unwanted babies in...

  12. Chapter 7 Abortion in the Criminal Courts of the Ius Commune
    (pp. 171-197)

    For wrongdoing defined as crimen, twelfth-century jurisprudence provided four different procedural remedies to choose from. Two of them, sacramental confession and penitential denunciation, addressed sin as crime in the abstract (interpretative), directed against God and the community of the faithful. The other two, accusation and inquisition, instead served to prosecute crimina that were verifiable (actu) and entailed breaches of peace to the detriment of earthly society. From a modern perspective, trials brought via confessionis or denuntiationis do not qualify as criminal because inquiries depended on voluntary revelations to a priestly confessor or responded to vague rumors that someone had committed...

  13. Chapter 8 Forms of Punishment in the Criminal Courts of the Ius Commune
    (pp. 198-219)

    Legal historians today agree that during the later Middle Ages criminal sentencing shared important characteristics, whether in the lay jurisdictions of the English common law (see chapters 2 and 5), or those of the scholastic Ius commune. Maximum penalties affected but a small percentage of cases brought before the courts, and verdicts of death or mutilation were carried out in elaborate public ceremonies, attracting throngs of onlookers and culminating in scenes of exceptional cruelty. To capture the essence of the final judicial act, scholars have spoken of its theatricality and stressed the inclination of medieval judges to punish in graphic...

  14. Chapter 9 The Frequency of Criminal Prosecutions
    (pp. 220-240)

    It is generally assumed in Western discourse that events of public significance such as intentional homicides enter the written record somehow and somewhere. Crime statistics suggest a tight correlation between actual incidents and cases filed by judicial institutions. For the current purpose, it is irrelevant whether the minimal difference between tangible and officially registered facts constitutes, to a higher or lesser degree, a modern myth. More important, common perceptions are correct in their estimate that administrative reporting today captures a larger proportion of unnatural deaths than ever before in human history. Possibly for the same reason, studies of past criminal...

  15. Bibliography
    (pp. 241-258)
  16. Index
    (pp. 259-264)