Description
Book SynopsisAnyone 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 a
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[T]he argumentation is intricate. To put it differently, this reader found that the importance of Criminalization rose to the surface upon a second reading. For, this is an important book, which will interest historians across the sub-disciplinary spectrum and not only late medievalists. It provides a stimulating account of the theoretical and practical development of medieval criminal justice and will become a sine qua non in the history of abortion.
-- Zubin Mistry * The Mediæval Journal *
The Criminalization of Abortion in the West examines the processes which led to the voluntary killing of a human fetus becoming a crime, as opposed to a sin or a wrong compensable by a money payment....This book should be regarded as essential reading for those studying the interface between law and medicine in medieval Europe, to legal historians and social historians.
-- Gwen Seabourne * Social History of Medicine *
Muller traces the tortuous path of the treatment of abortion as a public crime (felony) between the late 12th and early 16th centuries.... He succeeds in demonstrating the shift in the settlement of disputes from the pre-12th-century local control of justice depending on local power and the strength of family status to a more public hearing under the control of centralizing authorities.... Added to these public tribunals to investigate abortion as a crime was the widespread public attitude that regarded it as no more than a sin, if that, subject to confession to a priest and the performance of penance.
* Choice *
Table of ContentsIntroductionChapter 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)Chapter 2. Early Venues of Criminalization
Crimen in Sacramental Confession
Judicial Crimen in the Ecclesiastical Courts
Public Penitential Crimen
Royal Jurisdiction in Thirteenth-Century EnglandChapter 3. Chief Agents of Criminalization
Legislation versus Juristic Communis Opinio
Communis Opinio and Peer Dissent
Systematic Law before the Rise of the Modern StateChapter 4. Principal Arguments in Favor of Criminalization
Successive Animation and Creatianism
Legal and Theological Assessments of Therapeutic Abortion
The Demise of Late Medieval EmbryologyChapter 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 PrescriptionsChapter 7. Abortion in the Criminal Courts of the Ius Commune
Criminal Accusationes and Inquisitiones
The Rules and Safeguards of Ordinary Inquisitiones
Extraordinary InquisitionesChapter 8. Forms of Punishment in the Criminal Courts of the Ius Commune
Statutory and Customary Specifications
Substitute Penalties
Adjustment Out of CourtChapter 9. The Frequency of Criminal Prosecutions
Viable Statistical Queries
Geography and Patterns of Record Keeping
A Triad of Typical CasesBibliography
Index
