The Criminalization of Abortion in the West
Its Origins in Medieval Law
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
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Title Page, Copyright
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...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. Left subsequently with a considerable stack of lecture notes, I developed the idea of writing a short ...
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...cesses by which, over the course of the High and later Middle Ages, abor-tion 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 writ-...
hapter 1The Earliest Proponentsof Criminalization
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...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 ...
Chapter 2Early Venues of Criminalization
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...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 emerg-ing political forces that also drew on ideas of downward justice as the central ...
Chapter 3Chief Agents of Criminalization
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...and his colleagues have shed much light on the inconspicuous and workman-like 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 collec-...
100Chapter 4Principal Arguments in Favorof Criminalization
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...ified 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 ...
Chapter 5Objections to Criminalization
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Ages, there is a massive preponderance of statements that treat abortion as a serious crimen. A carefully crafted rhetoric of condemnation, first formu-lated 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 ...
Chapter 6Abortion Experts and Expertise
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...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 ...
Chapter 7Abortion in the Criminal Courtsof the Ius Commune
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...century jurisprudence provided four different procedural remedies to choose from. Two of them, sacramental confession and penitential denun-ciation, 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 ...
Chapter 8Forms of Punishment in the CriminalCourts of the Ius Commune
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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 muti-lation were carried out in elaborate public ceremonies, attracting throngs of ...
Chapter 9The Frequency of Criminal Prosecutions
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...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 ...
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Page Count: 263
Publication Year: 2012