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13.06.34, Müller, The Criminalization of Abortion in the West

13.06.34, Müller, The Criminalization of Abortion in the West

The Criminalization of Abortion in the West is Wolfgang Müller's second monograph on this subject, the first being his publication in 2000, Die Abtreibung which covered the entire Latin West in terms of judicial practice until 1500 and of juristic theory until 1650. This new volume, whilst in some ways a companion piece, treats the subject more topically in an effort to tease out the intellectual and historical circumstances by which abortion came to be treated as a crime worthy of criminal, rather than simply penitential or spiritual, punishment. Whilst acknowledging that the murder of the unborn had been deemed a homicide (whether voluntary or involuntary) that required compensation in spiritual and also often material terms since Late Antiquity, it is Müller's chief contention that it was only during the twelfth and thirteenth centuries that abortion was infused with the strictly criminal connotations such as we would understand "crime" in the modern world. Müller argues that a range of socio-economic factors, but especially the development of professional schools of law in Bologna in the twelfth century, shaped a new attitude towards the murder of the unborn and he situates this contention in the context of a drawn-out shift from what scholars have called "communal justice" to "downward justice." Müller thus uses abortion and infanticide as a means of understanding the history of the invention of criminalization in the Western legal tradition.

The book contains nine chapters. In the Introduction, Müller sets out his argument that the first application of the word crimen in a modern understanding to abortion occurs in twelfth-century juristic circles following Gratian's stipulation that the killing of a fetus constituted homicide (whether abortion per se or and more often miscarriage by assault) that entailed the same punishment. Here he sketches the book's contention that whilst such killing was without doubt understood to be morally wrong and even a "crime" (if more in terms of penitential crimina) in previous centuries, it was only now that canon and Roman lawyers developed a more concrete understanding that fitfully informed criminal practice over the following centuries, albeit with divergences in continental Romano-canonical procedure and English common law. In Chapter 1, Müller turns to the earliest proponents of criminalization, arguing that that twelfth century was decisive in distinguishing punishable acts from other forms of human misconduct. Here considerable attention is devoted to terminology, especially the meaning of the term crimen, which he rightly argues carried a multiplicity of connotations in the earlier middle ages that later canonical jurisprudence sought to distinguish. Focusing on the scholastic origins of criminal abortion, Müller discusses the issues of at what stage a fetus became human and the impact of this timing on whether or not its death constituted homicide. Interestingly he shows the extent to which birth itself was not the dividing line. In this chapter as well there is discussion of the understanding of abortion in the earlier middle ages, characterized here and echoing James Brundage as an age of "law without lawyers" (34ff) [1]. Müller briefly considers pre-Gratian canonical collections, the Germanic leges, and the libri penitientiales. Here, whilst acknowledging the large body of prescriptive texts that condemned abortion as a wrongful act, Müller nonetheless concludes that the forms of compensation required: penance, exclusion from clerical office, payment of wergeld, etc., as well as the procedures used in such cases (ordeal and compurgationes) reflect a period where justice was communal rather than downward and hence not "criminal."

Chapter 2 addresses the early venues of criminalization with Müller noting the extent to which socio-economic development and incipient urbanization fueled an increasing interest in the universalizing forms of jurisprudence emanating from the schools as over against the communal justice better suited to small, close-knit communities. Here, addressing in turn the transformation of crimen in sacramental confession, judicial crimen in ecclesiastical courts and public penitential crimen as important precursors, Müller argues that these were still far removed from punitive sentencing for a crime such as we would recognize it. Müller also notes the different developments in thirteenth-century England where abortion or more properly miscarriage by assault became (though not irrevocably) a felony in English common law. Strikingly, as Müller shows, the cases all involved violent miscarriage rather than women looking to abort their children. In Chapter 3, Müller further argues that it was the law school professors and professional jurists rather than any political or legislative initiatives that furthered the trend towards criminalization. Chapter 4 addresses the principal arguments for criminalization by assessing how the theory of successive animation, i.e. that a fetus went through several phases of development and that its termination after it was joined by a soul was deemed to be murder worthy of capital punishment. Chapter 5 then looks to analyze the extent to which society resisted the criminalizing tendencies of the professional lawyers (and theologians) by focusing on two regions where the legal culture resisted the Bolognese ius commune: German-speaking lands north and east of the Rhine and England after 1348 when abortion was removed from the list of capital crimes.

Chapter 7 turns to actual trials of prenatal murder as crimes, but reveals that except in very rare cases there were few actual condemnations. Moreover in Chapter 8, where Müller assesses the punishments prescribed for those found guilty, he reveals that such sentences, especially in areas utilizing Romano-canonical procedure, were extremely unlikely to be carried out unless the individual in question was of marginal status until well into the early modern period. Chapter 9, which serves as the conclusion, addresses the frequency of criminal prosecutions by questioning quantitative issues of whether abortion and its prosecution (as opposed to allegations thereof) increased, the patterns of recordkeeping and the extent to which the coercive strength of prosecutors increased. Here he concludes that "the threat of punitive treatment" and "the introduction of formal safeguards to alleviate social concerns about the dishonorable effect of top-down investigations" prevailed well into the early modern period when "when judges improved their ability to inquire into crime unilaterally" (238).

This is an excellent volume, characterized by extremely high standards of historical scholarship and Müller makes his case with a penetrating analysis of an extremely impressive range of primary sources. One finds delightful examples such as the case of the parson Mathias Jacobi of Godkow whose supplicatio to the Sacra Penitentiaria in 1461 noted that when his servant Helen refused to make his bed, he pulled her sleeve causing her to fall and she miscarried the following day to his amazement as he believed she was a virgin. There are equally tragic cases such as that of Lucia Sclabona, the servant of a Sicilian merchant, who was arrested in 1475 by Venetian officials after a lifeless newborn was found in her employer's house and suspicions fell on her. Although claiming that she delivered a stillborn, the tribunal decided to use torture in her case. In a more draconian case in San Miniato in 1427, Lucia de Boninsegna, who was found guilty of smothering her newborn in secret, was beheaded. Taking Müller's evidence cumulatively, one cannot help but be struck and indeed seduced by his argument that a fundamentally new attitude towards the murder of the unborn was appearing in the Latin West from the second half of the twelfth century and that by extension the very process of criminalization began at this time.

Some readers will accept these conclusions more than others, although some will have misgivings about the premise of reading "crime" in a modern understanding backwards into the past. Müller is well aware of the potential for distortion and anachronism and is extremely sensitive to the terminology of crimen and the other terms found in the primary sources. One wonders, however, whether a shift in the meaning, let alone application, of crimen was as clear cut as he contends. On the whole, Müller contrasts crimen with the German word "Tort" (wrong), rather than falling into murky waters by using "sin" peccata, or other translations of culpa or reatus. One is reminded here of the historiographical debates that characterized the interpretation of early medieval penance Busse oder Strafe?, in other words, penance as medicine for sin versus discipline. [2] Müller does not engage directly with this debate though one senses it lies in the background and may well have informed the choice of the more neutral "Tort."

Nevertheless the question must remain, can we so readily dismiss the earlier middle ages--that time regrettably characterized as an age of "law without lawyers"--as not understanding homicide as a "crime"? Early medieval society knew right from wrong as Müller clearly emphasizes and, moreover, abortion was a "wrong" that demanded compensation whether penitential and/or material. Indeed, some of Müller's cases, especially evident in the decretal of Pope Innocent III in 1211, in the many clerical appeals to Rome and the Sacra Penitentiaria and where Romano-canonical procedure persisted if not prevailed in moderating the full rigor of the law, clearly suggest that crimen remained a fluid concept after the second half of the twelfth century. Admittedly municipal courts in Italy meted out harsh, "criminal" punishments but one senses we may be in danger of overestimating both the nature and the timing of a shift from "Tort" to crimen, one that I suspect lasted longer than the impression given here, and one again that persists in the modern world.

Underlying Müller's argument, finally, is a legal historical narrative; one that posits that real jurisprudence (and hence real notions of crime) developed only after the 1130s, when canon law became rational, systematic and professionalized under the influence of the study of Roman law in the schools and universities and as a consequence lost its theological orientation and became procedural. As Abigail Firey, among others, has noted, "there is danger in seeming to reduce 'law' and 'jurisprudence' to learned law and the written opinions of professional jurists", a danger in envisaging this law as universal and prescriptive. [3] As Müller's own evidence shows, even learned legal opinion on the matter of abortion and infanticide and perhaps most especially its application still was affected by the social and cultural context even after the 1130s.

The Criminalization of Abortion in the West is an important and fascinating study on the transformation of attitudes towards the murder of the unborn and offers a compelling argument about criminalization in the Latin West that will challenge medieval and legal historians alike to think further about the nature of the development of the Western legal tradition.



[1] James Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago: Chicago University Press, 2008), Chapter 2 "Law without Lawyers: The Early Middle Ages," 46–74.

[2] The debates are usefully summarized in Abigail Firey, ed., A New History of Penance (Leiden and New York: Brill, 2008).

[3] Abigail Firey, "Getting Rid of the Lawyers with High Explosives: The Strange History of Medieval Canon Law," Paper presented at the Medieval Academy of America’s annual meeting, Chicago, 26–28 March 2009. I am grateful to Abigail Firey for permission to cite this unpublished paper here.