The Criminalization of Abortion in the West: Its Origins in Medieval Law by Wolfgang P. Müller (review)

This work, dry and didactic as its presentation is, is in essence highly controversial. Despite its apparently limited subject matter, its underlying discussion covers the development of medieval canon law from the twelfth century as a whole. It also takes in the role of professional university canonists and civilians from Bologna, especially Gratian, in the clarification of jurisprudence, whose analysis, Wolfgang Müller argues, transformed pre-twelfth-century 'vaguely perceived notions of right and wrong' (p. 95) into a logical system by which lawyers in most courts were ruled. Müller, who has devoted his life to its study, comes from the German school that sees this 'rediscovery' of Roman law as 'scientific jurisprudence'. He asserts that rulers, and the laws they passed, played a minimal part in the construction of law. Traditional custom and social expectations were largely irrelevant. Treating English common law as exceptional, he argues that its lawyers were nevertheless clearly influenced, indeed empowered, by the ius commune of the scholastics.

Abortion, because it raises important issues in both moral and legal contexts - when does God put the soul into the body? - and involves all four professional faculties - theology, medicine, canon, and civil law - makes a good focus for such a study. In the Scholastic texts, abortion principally means the destruction of a foetus by someone other than the mother and depends on the Septuagint version of Exodus 2. 22-23. In secular courts, however, attention became focused on the use of abortifacients associated with poison and the likelihood of, or concealment of, pregnancy that became such a cause of anxiety and statutory legislation in the sixteenth and seventeenth centuries. As Müller points out, the surviving records cannot give us a statistical overview of the frequency of abortion at any time since many factors would influence the number of cases brought, but they do show what was seen as important in the cases that were brought and how and when there were changes in attitudes.

Müller seeks to stress the different meaning that the term crimen had in the Middle Ages and how assuming present day meanings is misleading. Wrongdoing defined as 'crimen' during the twelfth century came under four possible procedures: as a crime against God, sacramental confession and penitential denunciation in the religious arena; as an offence against society, accusation and inquisition. He distinguishes what he sees as the application of penance for sin to clerics or those aspiring to clerical orders and (less clearly) to the laity from the punishment of what seem to us similar actions under secular law. Since in Anglo-Saxon and Irish Poenitentials various penances were imposed on parents who killed their children before or after baptism, the only distinction that seems to apply is the well-known fact that the clergy could not be convicted in secular courts.

Müller's dismissal of pre-twelfth-century jurisprudence as unformed is in clear opposition to the many legal historians, such as J. H. Hudson and Daniel Lord Smail, who have held that users of the law in early medieval Europe had a satisfactory and rational, if largely unwritten, judicial system before the twelfth century. Müller, however, seeks to rely solely on contemporary written material which is largely confined to the Poenitentials and to the occasional dissimilar territorial laws such as those Charlemagne had written down. The desire for common principles he attributes to the increase in international trade and commerce which required certainty.

Müller's argument that academic legal reasoning eventually came to inform secular law depends on the assumption that wherever a city or a state adopted a code that included ideas also found in academic texts, those ideas were derived from the academic and did not exist in the (by implication, inferior) practice that had preceded it. The same applied to the replacement of...