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The Criminalization of Abortion in the West

Its Origins in Medieval Law

by Wolfgang Müller

Publication Year: 2012

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.

Published by: Cornell University Press

Title Page, Copyright

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pp. 2-5

Contents

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pp. v-vi

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Acknowledgments

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pp. vii-viii

Work on what would become the present book started in the spring of 2002, when Anne Lefebvre-Teillard (Institut Catholique de Paris) and Frank Roumy (Université de Paris XI, now at Paris II) invited me to present my vision of medieval canon law over the course of four seminar sessions to their graduate students. ...

Abbreviations

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pp. ix-xii

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Introduction

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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. ...

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Chapter 1. The Earliest Proponents of Criminalization

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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. ...

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Chapter 2. Early Venues of Criminalization

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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 ...

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Chapter 3. Chief Agents of Criminalization

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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, ...

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Chapter 4. Principal Arguments in Favor of Criminalization

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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. ...

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Chapter 5. Objections to Criminalization

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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. ...

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Chapter 6. Abortion Experts and Expertise

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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. ...

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Chapter 7. Abortion in the Criminal Courts of the Ius Commune

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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. ...

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Chapter 8. Forms of Punishment in the Criminal Courts of the Ius Commune

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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, ...

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Chapter 9. The Frequency of Criminal Prosecutions

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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. ...

Bibliography

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pp. 241-258

Index

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pp. 259-264


E-ISBN-13: 9780801464157
E-ISBN-10: 0801464153
Print-ISBN-13: 9780801450891
Print-ISBN-10: 0801450896

Page Count: 263
Publication Year: 2012

Edition: 1