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

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. "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"-- Provided by publisher

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.

Contents Acknowledgments Abbreviations Introduction 1. The Earliest Proponents of Criminalization The Scholastic Origins of Criminal Abortion Forms of Sentencing in Medieval Jurisprudence Crimen in “An Age without Lawyers” (500–1050) 2. Early Venues of Criminalization Crimen in Sacramental Confession Judicial Crimen in the Ecclesiastical Courts Public Penitential Crimen Royal Jurisdiction in Thirteenth-Century England 3. Chief Agents of Criminalization Legislation versus Juristic Communis Opinio Communis Opinio and Peer Dissent Systematic Law before the Rise of the Modern State 4. Principal Arguments in Favor of Criminalization Successive Animation and Creatianism Legal and Theological Assessments of Therapeutic Abortion The Demise of Late Medieval Embryology 5. Objections to Criminalization Customary Indifference North and East of the River Rhine Rejection in the Royal Courts of England (1327–1557) 6. Abortion Experts and Expertise Evidence of Midwifery Medical Embryology and Abortion Discourse Abortifacient Prescriptions 7. Abortion in the Criminal Courts of the Ius Commune Criminal Accusationes and Inquisitiones The Rules and Safeguards of Ordinary Inquisitiones Extraordinary Inquisitiones 8. Forms of Punishment in the Criminal Courts of the Ius Commune Statutory and Customary Specifications Substitute Penalties Adjustment Out of Court 9. The Frequency of Criminal Prosecutions Viable Statistical Queries Geography and Patterns of Record Keeping A Triad of Typical Cases Bibliography Index