The Criminalization of Abortion in the West

Its Origins in Medieval Law

Wolfgang P. Müller

• Publisher: Cornell University Press
• Year: 2012
• Print ISBN: 9781501746581
• eBook ISBN: 9780801464621
• Topic: History
• Subtopic: European Medieval History
• Index: History

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.

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, 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.

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 set them apart from mechanisms governing wrong and its retribution in this world. To speak in modern parlance about criminalization in Latin Christendom prior to the formative phase of terminological reflection from about 1150 to 1200 would, as a result, be anachronistic and in disregard of contemporary conceptual capabilities. It was during the same period, moreover, that courts and judges seized the opportunity of drawing abortion into the orbit of punitive justice. A closer look at the two events—the origins of a coherent crime language on the one hand and the criminalization of attacks on unborn human life on the other—reveals that both were intimately connected. Efforts by the learned to rank prenatal killings among allegations in need of punishment grew together with the ability to express ideas of this nature accurately and adequately. Or to put it differently, abortion figured as a crime in medieval Western jurisprudence for as long as there was crime, given that, up to the later 1100s, laws did not subscribe to a streamlined and logically consistent understanding of the term.

The Scholastic Origins of Criminal Abortion

Social and economic conditions calling for reliance on professional legal expertise had been wanting before the twelfth-century rise of “universities,” urban centers of higher education that offered students the prototypes of a “scholastic” study program. Gratian belonged to an ensemble of intellectual “Founding Fathers” who placed the emerging theological, medical, and juristic disciplines on sound scholarly foundations. As it turned out, he put together a textbook for lectures on church, or canon, law that was comprehensive, systematic, and methodically compelling at the same time. In classrooms throughout Latin Christendom, the final version of his Decretum, assembled around 1140, quickly eclipsed all of the older canon law collections.2 While preserving most of the authoritative source material compiled and transmitted over the centuries, Gratian displayed the normative tradition in an unprecedented dialectic arrangement, juxtaposing canones in support (pro) as well as against (contra) propositions thought to reveal the canonical truth. In addition, he supplied a running commentary (dicta) of his own, expressly inviting readers to identify contradictions between “discordant canons.” Through informed reasoning, they were to be reduced to the “concordance” of real—that is to say coherent—canonistic doctrine. For many generations, concern about internal inconsistencies between ecclesiastical norms had been minimal, limited to single-handed corrections or rhetorical exercises in the prefaces of early medieval canonical collections. The greatest “turning point” in the history of canon law was reached when scholastic teachers, sustained by a rapidly growing trend, established the elimination of logical “dissonances” for the sake of overall doctrinal “harmony” as the principal assignment of academic professionals. Along with them, canonists, juristic experts trained in the canons, and the “science” of canonistic jurisprudence became permanent features of the educational landscape.3

Late medieval students attending introductory lectures on the law of the church were unlikely to hear about the issue of fetal killings in extensive detail. From the appearance of the Decretum onward, canonistic textbooks displayed but a handful of references to the subject, which typically figured as brief remarks tied to more comprehensive legal queries. For Gratian, this meant that he once cited a letter (epistola decretalis) of Pope Pelagius I (556–561) discussing the case of a woman who had miscarried when she found herself squeezed between two suddenly startled horses (D. 50, c. 48). The author of the Decretum invited his audience to ponder whether the scenario amounted to veritable criminal homicide. In a second and equally fleeting passage (C. 2, q. 5, d.p.c. 20), he again suggested that there existed a close correspondence between homicidium and abortion. The text reproduces a rhetorical question originally posed by Pope Stephen VI (886–889). Presuming that someone causing the death of a fetus was called homicida, the pope had speculated, would not he who had killed a one-day-old infant possess even less of an excuse from similar charges? The obvious answer notwithstanding, scholastic writers preferred as their principal “seat” (sedes materiae), or point of departure, for learned reflections one last mention of abortion in a cluster of canons (C. 32, q. 2, c. 8–10) Gratian had assembled under his own leading quaestio (d.p.c. 7): “Concerning those who procure an abortion, the question is whether they are to be judged as homicides, or not.” The response is presented immediately afterward, in a rubric (to c. 8) that precedes several pieces of additional authoritative justification: “He who procures an abortion before the soul is infused into the body is not a homicide.” In support of his conclusion, Gratian quoted three excerpts from the normative tradition. A pair of texts (c. 8–9) he ascribed to the authority of Saint Augustine (d. 431). A third and final passage (c. 10) came from the pen of another patristic writer, Jerome (d. 429).4

Readers consulting the Decretum for guidance in academic lectures and courtroom activities seem to have met with little difficulty when trying to understand the doctrine of abortion that Gratian had drawn from older church norms. Over the next century, his immediate successors, the decretists, built a strong consensus to the effect that what the author of their textbook had intended by speaking about ensoulment as the necessary prerequisite for charges of homicide was that, before the incriminating act, the aborted fetus had to have acquired human shape. On the basis of the chapters attributed to Saints Augustine and Jerome, it was agreed that physical formation marked the entry of an immortal soul into the conceived body. Following the lead of their “master,” commentators also considered it superfluous to advance more elaborate explanations, apart from reiterating, tirelessly, the crucial equation of homicide with killings of the formed fetus (puerperium formatum). Having distinguished abortions amounting to actual homicidium from others that did not qualify as such, canonistic theorists at schools across Latin Christendom went on to debate other legal implications in treatments they devoted to the broader topic of manslaughter. It was understood, though rarely rendered explicit, that teachings under the heading of De homicidio would likewise extend to cases involving the death of “ensouled,” “formed,” or “animated” life in the maternal womb.5

Modern observers who investigate the doctrinal attitudes of canonists in the earliest, formative period of their discipline, from around 1140 to 1234, may be led to believe that in the minds of Gratian and his students, abortion formed on the whole a rather marginal concern. By the time the decretists had placed the matter in the larger framework of crime and homicide, it appears as though quests for systematic coherence had been satisfied and interest in the argument subsided. Similar impressions are evoked by the circumstance that when canon lawyers of the 1170s began to supplement the Decretum with additional canonical material and more recent papal decretals circulating outside Gratian’s work as extravagantes, the problem of fetal death did not figure very prominently. Only two new chapters mentioning abortion made their way into the Liber extra, the second definitive textbook adopted by canon law schools in 1234. The companion volume to Gratian, promulgated by Pope Gregory IX under the title of Decretales Gregorii IX, was seen by decretalist commentators as scarcely adding to the conclusions of previous canonistic thought. Both extravagantes were positioned under the familiar rubric of De homicidio voluntario (X 5.12) and corroborated long-held assumptions according to which certain abortions warranted equation with voluntary homicide. The first text (X 5.12.5) was understood to reiterate the crucial difference between actual killings of a formed fetus (in actu) and merely virtual slayings, “as if” of a human being (ut homicida), becoming manifest, for example, in the death of a shapeless and barely conceived embryo. The second (X 5.12.20), originally issued by Pope Innocent III in 1211, affords apostolic confirmation of the idea that bodily formation separates homicidal abortions from nonhomicidal ones. Whereas the former necessitate criminal canonical sentencing, the latter call only for penitential intervention and appeal to Christian conscience in view of the afterlife and future salvation. Other decretal collections law professors lectured on—the Liber sextus authorized by Pope Boniface VIII in 1298, the Clementinae of 1317, and the Extravagantes Iohannis XXII of 1322—make no reference to abortion at all, which again seems to indicate that questions relating to the protection of unborn existence represented but a collateral aspect of more pressing legal issues.6

As soon as attention is extended beyond the confines of canonistic debate to the neighboring field of Roman law studies, however, any thought of scholastic indifference toward abortion turns out to be unfounded. Medieval attempts to formulate abstract and generally binding principles of conduct and effect their amalgamation into a single and coherent system of norms for the laity were doubtlessly animated by the same cultural transformation that led to the establishment of the canonistic curriculum. It was not by accident that both branches of Western jurisprudence, one to be applied in the secular and the other in the ecclesiastical sphere, found their first permanent home in a single location, the northern Italian city of Bologna, and that they assumed contours almost contemporaneously, about the middle of the twelfth century. Yet unlike Gratian, their counterpart, the earliest exponents of legal sources grounded in the ancient imperial rather than canonical tradition did not have to distill their authoritative materials from widely disparate excerpts and bring them into a suitable textbook format. What they needed to accomplish was to reassemble, after half a thousand years of obsolescence, the long extant Corpus iuris civilis, the late ancient synthesis of Roman law originally pieced together by a commission of jurists working under Emperor Justinian I (527–565). The recovery, set into motion by the generations of Pepo (fl. 1070) and Irnerius (fl. 1120), the alleged founders of the Bolognese civilian school, appears to have reached completion by 1150, when manu...

Table of contents

• Acknowledgments
• Abbreviations
• Introduction
• 1. The Earliest Proponents of Criminalization
• 2. Early Venues of Criminalization
• 3. Chief Agents of Criminalization
• 4. Principal Arguments in Favor of Criminalization
• 5. Objections to Criminalization
• 6. Abortion Experts and Expertise
• 7. Abortion in the Criminal Courts of the Ius Commune
• 8. Forms of Punishment in the Criminal Courts of the Ius Commune
• 9. The Frequency of Criminal Prosecutions
• Bibliography