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20 Chapter 1 The Earliest Proponents of Criminalization 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 upon generation after generation the seemingly iron rules of “You shall not kill” and “You shall not steal.” The historical record proves otherwise. In exploring the legal past,scholars have come to the realization that the elaboration of crime as a concept similar to the one now in use in the West did not get under way until the second half of the twelfth century. During the preceding half millennium of the early Middle Ages,from about 600 to 1100,nobody in Latin Christendom would have employed the term in the sense commonly attached to it today. Among those responsible for the watershed event—that is,the beginnings in Western history of crime properly speaking—was a group of specialists known as the teachers and practitioners of scholastic jurisprudence. Before the 1100s, THE EARLIEST PROPONENTS OF CRIMINALIZATION 21 professional jurists were not to be found.1 By 1200 they had established themselves alongside full-time theologians and medical doctors at burgeoning schools of higher learning in Bologna, Paris, Montpellier, Oxford, and elsewhere. In response to an increasing demand for doctrinal expertise of unprecedented sophistication, jurists also started to offer advice and service to courts and adjudicating panels across the continent. With opportunities for lucrative employment in ecclesiastical administration and in urban and royal lay governments constantly on the rise, intellectual endeavors to create coherent normative constructs, and especially a system of church law, were key to the invention of crime as a distinct category of human conduct. Terminological clarification forged standards of right and wrong that academic circles and judicial tribunals have expanded upon ever since. To credit high-medieval university professors of law and theology with groundbreaking contributions to the criminalization of certain behaviors does not imply that, as leading intellectuals, they were reshaping societal attitudes single-handedly. Quite to the contrary, scholastic thinkers were swept into the limelight by a massive cultural transformation affecting many areas of the Latin West. The so-called Peace Movement, gaining traction in the years after 1000, attests to incipient formulations of a political agenda aimed at the suppression of arbitrary violence and private feuding. In due time, its leaders were able to mobilize a substantial following, united by the idea that homicide constituted the worst possible disturbance of order among Christians. The categorical condemnation of bloodshed and killings, combined with the praise of peace as the normal state of public affairs,forcefully emerged from the indifference of previous ages, which had been dominated by endless cycles of warlord rivalry. People now rallied against endemic recourse to murder and mayhem as ordinary means of conflict management and became the principal clientele of those who, soon enough, were catapulted into positions of great prestige as figureheads of the systematic study of ecclesiastical and lay, or secular, law. By assuming, in line with the Peace Movement,that violent attacks on fellow human beings were intolerable and called for punitive action, an ever greater number of Westerners inquired about possibilities of judicial intervention. The search for abstract norms regulating the behavior of every individual was on. 1. Manlio Bellomo,The Common Legal Past of Europe,1000–1800,trans. Lydia Cochrane (Washington , DC: Catholic University of America Press, 1995), 34–54; James Brundage, The Medieval Origins of the Legal Profession. Canonists, Civilians, and Courts (Chicago: University of Chicago Press, 2008), 46–74, assigns “law without lawyers” to the early Middle Ages as well. 22 CHAPTER 1 The twelfth century was decisive in distinguishing punishable acts from other forms of human misconduct. For the first time in Western history, scholastic teachers systematically explored the difference between crime and tort, between litigation in pursuit of material compensation and, alternatively ,penal consequences for delinquents found to have disturbed the public peace and offended the common good. Jurists also defined criteria of sin and spiritual satisfaction so as to...

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