RIt PL Delict 2020 lectures 7 and 8 - Iniuria PDF

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A Roman Introduction to Private Law: Delict Law Moderations Hilary Term 2020

V Iniuria (contempt) A Introduction G III.220 Now, an outrage [iniuria] is not only committed when a person is struck with the fist, or a stick, or even scourged; but, also, if a crowd has been caused to assemble round him, or if a person has advertised for sale, by auction, the property of another, as if he were his debtor, when he knows that the latter does not owe him anything; or if a person has written a libel or verses in defamation of another’s character; or if a person has persistently followed a respectable woman or boy, and, in short, in many other ways.

J IV.4.pr The word “iniuria”, in its general acceptation, means something done contrary to law; in a special sense it means sometimes outrage (“contumelia”, which comes from “contemnere”, the Greek ‘ [hubris]); sometimes culpable negligence (“culpa”, which the Greeks call ’[adikema]), as in the Aquilian law, where damage is spoken of as done wrongfully (“iniuria”); sometimes, again, it is used in the sense of iniquity and injustice, which the Greeks all ’[adikia]; and the person, against whom the praetor or a judge pronounces an unjust sentence, is said to have had a wrong (“iniuria”) done to him. Classical Roman law appears to have recognised a unified conception of harm to personality, organised around the concept of contumelia (contempt, disrespect or outrage), which comprised a wide variety of specific harms. This remains one of the hallmarks of Civilian legal systems: cf the common law. Iniuria appears to have been geared towards the protection of personality interests, although this may have been its indirect effect rather than its intended purpose. NB: don’t confuse the delict of iniuria with damnum iniuria (wrongful loss; property damage)

B Pre-classical iniuria 1. Iniuria in the Twelve Tables Twelve Tables (Table I, formerly Table VIII): 1.13 If he has maimed a part (of a body), unless he settles with him, there is to be talion. 1.14. If he has broken a bone of a free man, 300, if of a slave, 150 (asses) are to be the penalty 1.15 If he do (any other) injury ?to another?, 25 (asses) are to be the penalty.

See also the paraphrase of these provisions by Gaius in G III.223. Meaning of iniuria in the third proposition? One suggestion is that it referred to non-physical outrages such as defamation; a second, to any kind of unlawful conduct. However, neither of these suggestions is wholly satisfactory. Parallels in Near Eastern law codes? (Ibbetson ‘Wrongs and Responsibility in Pre-Roman Law’ (2004) 25(2) Journal of Legal History 99-108) Sumerian laws of Ur-Namma (around 2100 BC): 18 If a man cuts off the foot of another man…he shall weigh and deliver 10 shekels of silver. 19 If a man shatters the bone of another man [with a club] he shall weigh and deliver 60 shekels of silver. 20 If a man cuts off the nose of another man with […] he shall weigh and deliver 40 shekels of silver. ... 22 If [a man knocks out another man’s] tooth with […], he shall weigh and deliver 2 shekels of silver.

Babylonian Laws of Hammurabi (second millennium BC): 1

196 If an awilu should blind the eye of another awilu, they shall blind his eye. 197 If he should break the bone of another awilu, they shall break his bone. 198 If he should blind the eye of a commoner, or break the bone of a commoner, he shall weigh and deliver 60 shekels of silver. 199 If he should blind the eye of an awilu’s slave or break the bone of an awilu’s slave, he shall weigh and deliver onehalf of his value (in silver). 200 If an awilu should knock out the tooth of another awilu of his own rank, they shall knock out his tooth. 201 If he should knock out the tooth of a commoner, he shall weigh and deliver 20 shekels of silver. 202 If an awilu should strike the cheek of an awilu who is of status higher than his own, he shall be flogged in the public assembly with 60 stripes of an ox whip. 203 If a member of the awilu-class should strike the cheek of another member of the awilu-class who is his equal, he shall weigh and deliver 60 shekels of silver. 204 If a commoner should strike the cheek of another commoner, he shall weigh and deliver 10 shekels of silver. 205 If an awilu’s slave should strike the cheek of a member of the awilu-class, they shall cut off his ear. 1

There are certain clear points of similarity between these Near Eastern law codes and the provisions in the Twelve Tables set out above (result-oriented; mix of talio and monetary penalties; differences in status between the parties apparently important; mix of serious and relatively trivial assaults), suggesting that the latter may been part of a much wider, older tradition rather than an indigenous Roman development. This suggests in turn that iniuria in Table 1 may have referred to the sort of minor physical injuries, such as slapping, which seem to dominate the Near Eastern law codes on personal injury.

2. Praetorian reforms Following here the account of David Daube ‘Ne quid infamandi causa fiat: The Roman Law of Defamation’ in Atti del congresso internazionale di diritto romano e di storia del diritto (Verona 1951) 413-418, reprinted in David Daube (David Cohen and Dieter Simon eds) Collected Studies in Roman Law (Klostermann 1991) vol 1 465. (a) The General Edict on iniuria Text of the General Edict: He who brings the action for iniuria, let him specify for certain what iniuria he has suffered and place an upper limit on the damages (vademonium) set for the case.

This text has been reconstructed using a passage from Paul preserved in the Collatio 2.6.1. See also the paraphrase in G III.224: But we now follow a different rule [i.e. to the Twelve Tables], for we are now allowed, by the praetor, to estimate the outrage for ourselves, and the judge, in his discretion, and by his sentence, either award the sum we have estimated or a smaller amount…

Pattern formula provided in the General Edict: Whereas Aulus Agerius was hit in the face… [from the Collatio 2.6.4]

Stimulus for reform? See the story of Lucius Veratius (Aulus Gellius quoting Labeo in the Noctes Atticae 20.1.13), also suggested by G III.223 (‘considering the great poverty of all classes in those times, these sums seem to have been sufficient by way of penalty’) Thus it appears that the scope of the General Edict on iniuria was originally the same as that of iniuria in the XII Tables (see section 1 above), i.e. minor physical injuries of a predominantly insulting character. This is also suggested by the pattern formula itself. General Edict probably in place by the end of the third century BCE (i.e. around 200 BCE) (b) Evolution of the special edicts

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Translation from M Roth Law Collections from Mesopotamia and Asia Minor (2nd edn Atlanta 1997)

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Special edicts evolved over the course of the second and first centuries BCE, and were initially independent of the General Edict on iniuria, both procedurally and substantively: i) Convicium (‘public clamour’ i.e. abuse/invective shouted at the claimant) Text of the edict: One who is said to have raised a clamour ( convicium) at someone contrary to public morals [contra bonos mores] or one through whose efforts such a clamour is raised… against him I will give an action.

[Lenel’s reconstruction of the Edictum Perpetuum, relying on Ulpian in D 47.10.15.2] What is convicium? A public demonstration of some kind (a form of community action) Such conduct not prima facie actionable, but the criterion of public morals ( boni mores) was used to capture cases which threatened to tip over into riot/violence, or where the demonstration was used for illegitimate ends (cf legitimate ends, such as securing compliance with some sort of legal or moral obligation). What if the defendant’s invective was true? ii) De adtemptata pudicitia (‘on attacks on chastity’ i.e. sexual harassment) Text of the edict: If someone is alleged to have abducted the companion of a matron ( materfamilias) or a boy or girl, or if someone has called out to them or followed them around contrary to public morals [contra bonos mores], I will give an action…

[Lenel’s reconstruction, relying principally on Ulpian in D 47.10.15.15-24] Again, conduct complained of not necessarily prima facie wrongful (although abduction may have been) but nevertheless actionable in some cases if contrary to public morals, contra bonos mores. iii) Ne quid infamandi causa fiat (‘let nothing be done to bring disgrace [infamia] upon another’) Text of the edict: Let nothing be done to bring infamia upon another. If anyone does anything to the contrary I will look into it…

[Lenel’s reconstruction, relying principally on Ulpian in D 47.10.15.25] Pattern formula? According to Lenel, this read: Whereas Numerius Negidius wrote a pamphlet against Aulus Agerius (libellum misit)...

[Collatio 2.6.5, as amended] But cf Daube’s reconstruction: Whereas Numerius Negidius let his hair grow wild in order to bring infamia upon Aulus Agerius (capillum inmisit)...’

See Seneca Controversiae 10.1 (the story of Dives [rich man] and Pauper [poor man] who followed him in mourning) Subjective intention to defame on the part of the defendant used to render any kind of conduct actionable. An extraordinarily sophisticated criterion for liability. Again, what if the allegation in question was true? In theory the outcome turned on the motive of defendant, i.e. whether he believed himself to be under a (moral or legal) duty to tell the truth, or whether his primary intention was in fact to defame the claimant. In practice, lawful intention was probably presumed from the surrounding circumstances. This meant that one who told the truth would generally be presumed to be acting for some legitimate purpose. See Paul in D 47.10.18.pr (probably talking about the special edict ne quid): It would not be right and proper that a person should be condemned for putting to shame [ infamare] a wrongdoer, for the sins of those who do wrong should be noted and noised abroad.

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Would this rule have covered gratuitous truth-telling, i.e. the ventilation of (true) allegations which others have no interest in hearing? (as in the modern English tort of defamation) iv) De iniuriis quae servis fiunt / servi alieni verberatio (‘on iniuriae which occur to or through slaves’ i.e. beating another’s slave) Text of the edict: The praetor says: ‘Where a man shall be said to have thrashed another’s slave contrary to sound morals or to have submitted him to torture without the owner’s consent, I will give an action. Equally, if it be said that something else be done, I will, having looked into the matter, grant an action.

[Lenel’s reconstruction, relying principally on Ulpian in D 47.10.5.34] Again, torture without the master’s consent is actionable without more; thrashing another’s slave is acceptable unless contrary to public morals. Was it the master who suffered the iniuria or the slave himself? Compare G III.222 (which suggests the former): No outrage can be deemed to be committed on a slave himself, as it is held to be done to the master through him; but we are not held to suffer an outrage through them, by the same means as would amount so such in the persons of our children or our wives, but only when such a gross outrage has been committed as makes it a manifest insult [contumelia] to the master, in which the case the formula would run, as, for example, “if a person has scourged another’s slave.” But if a person has caused a crowd to assemble round a slave, or struck him with the first, no formula is provided, and one would not easily be obtained by the claimant.

…with Ulpian in D 47.10.15.35–44: 35. If someone so inflict an outrage upon a slave that it be done to his master, in my view the master can bring the action for insult in his own right; but if the beating was not directed to the master, the outrage perpetrated upon the slave as such should not be left unavenged by the praetor, especially if it occurred through a thrashing or through torture; for it is obvious that the slave himself feels such things… …44. Thus, the praetor does not promise an action for every insult [ iniuriae] in respect of a slave; if the slave be lightly struck or mildly abused [maledictum], the praetor will not give an action; but if he be put to shame by some act or lampoon, I think that the praetor’s investigation into the matter should take into account the standing of the slave; for it is highly relevant what sort of slave he is, whether he be honest, regular, and responsible, a steward or only a common slave, a drudge or whatever. And what if he be in fetters, branded, and of the deepest notoriety? The praetor, therefore, will take into account both the alleged insult and the person of the slave said to have suffered it and will grant or refuse the action accordingly.

(c) Synthesis Special edicts originally entirely separate from the General Edict, and thus from the delict of iniuria itself. However, it appears that they were ultimately subsumed within the General Edict as instances of iniuria: Ulpian in D 47.10.15.3: Labeo [early Empire] says that convicium is an iniuria.

Ulpian in D 47.10.15.29: Labeo says that this particular edict [adtemptata pudicitia] is superfluous since we can proceed under the general edict on iniuria.

Ulpian in D 47.10.15.32: Similarly, if someone announces that he is selling a pledge in order to bring infamia upon me, as though he had received it from me, Servius says that I can bring the action for iniuria.

See also the lex Cornelia de iniuriis [early first century BCE] which criminalised punching ( pulsare), beating (verberare) and entering someone’s house by force (domum vi introire).

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This seems to constitute evidence that the delict of iniuria (i.e. the actio iniuriarum) did not yet extend to such injuries when the lex was passed. Thus it appears that punching and beating became actionable under the actio iniuriarium only towards the end of the first century BCE. They certainly fell within the scope of the classical iniuria delict. (d) Birks’ criticism of Daube’s account of the development of iniuria See Birks Obligations 237–43. Why was the delict called iniuria, ‘unlawful behaviour’, if from the start it dealt with something far more specific? Very unlikely that serious, deliberate assaults were left without a meaningful remedy until the end of the first century BCE. Evidence from procedure: edictal iniuria tried by recuperatores – why would that have been necessary if it originally dealt only with minor physical assaults? Thus according to Birks, the original scope of the General Edict on iniuria was unlawful behaviour in general. Core cases were instances of serious physical assault e.g. disabled limbs ( membrum ruptum) and broken bones (os fractum), but minor assaults were also included (see again the pattern formula) and in theory the edict extended beyond these to include any kind of unlawful act. Purpose of the special edicts was therefore to map out the internal landscape of iniuria by marking out particular kinds of conduct as unlawful, in addition to the core cases of assaults. Evidence in favour of this alternative view?

C Classical iniuria: contumelia (contempt, disrespect, outrage) 1. The origins of contumelia Influence of Greek thought here: concept of hubris/contumelia seems to have been brought into Roman law by Labeo, from Aristotle via Demosthenes. Contumelia played a crucial role in holding together the classical delict of iniuria. See Ulpian D 47.10.1.pr: Iniuria is so called from that which happens without right; for everything which does not come about by right is said to occur wrongfully. This is general. But iniuria in the specific sense is called contumelia… the word contumelia derives from holding someone in contempt (contemnendo)

And see again also J IV.4.pr

3. The scope of classical iniuria: any insulting or contemptuous conduct The principle of contumelia sums up the classical delict of iniuria: the contempt of the wrongdoer for his victim is expressed through acts of victimisation or harassment which violate his victim’s inherent right to concern and respect. See generally Birks ‘Harassment and Hubris: The Right to an Equality of Respect’ (1997) 32 Irish Jurist 1, 514, building on ideas earlier expressed in his lectures on Obligations (see 221, 224–225) Thus both the original subject matter of the General Edict and the special edicts of the Republic could be subsumed within the concept of contumelia, and thus within the actio iniuriarum of classical law. However, the principle of contumelia could also be used to extend liability to new cases, as in the following passages from Ulpian: D 47.10.9.4 If a person attempt to debauch another, whether male or female, freeborn or made free, he will be liable for insult [iniuriae]. So also if an attempt be made upon the chastity [puditicia] of a slave.

D 47.10.15 pr The question is also raised by Labeo whether, if a person derange another’s mind by a drug or some other means, the action for insult lies against him; and he says that it does. 1. If someone be not in fact struck but hands

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are raised against him and he is frequently afraid of beating, though not in fact struck, the wrongdoer will be liable to an actio utilis for insult.

D 47.10.15.21 One who uses base language does not make an attempt upon virtue but is liable to the action for insult.

D 47.10.13.7 If someone prevents me from fishing in the sea…can I bring an action for iniuria against him? There are some who think that I can. And so Pomponius (and with him most jurists) says this is similar to the case of the man who is not allowed to wash in the public baths or sit in the public theatre or talk in some other place, or if someone does not allow me to use my own property; for he likewise can be sued for iniuria …. Note: the same principle would appear to apply if someone trespassed on another’s land – cf the following text taken from the Digest title on theft: D 47.2.21.7: A person who enters an enclosure for the purpose of theft is not yet a thief even though he entered for the purpose of stealing. What then? By what action will he be liable? It could be the action for insult [ iniuriae] or he could be (criminally) charged with violence, if he made a forcible entry.

4. The defendant’s intention Only intentional conduct was actionable as iniuria. This is one of the most important distinctions between damnum iniuria, damage to property, for which culpa (inadvertent wrongdoing) sufficed, and iniuria, for which intention is necessary. Thus there is no liability for carelessly inflicted harm under the delict of iniuria. In support of this fundamental proposition see the follow text from D 9.2.5.3 (Ulpian): …Julian writes that a man was held liable under the lex Aquilia who had put a pupil’s eye out in the course of instruction: much more therefore must the same view be taken if he kills him. Now he puts the following case: a shoemaker, he says, when a boy who was learning under him, a freeborn filiusfamilias, did rather badly what he gave him to do, struck at his neck with a last, so that the boy’s eye was put out. Accordingly Julian says that the actio iniuriarum does not lie, because he struck the blow not intending to insult but to correct and instruct…

No iniuria by children or madmen according to Ulpian in D 47.10.3: We are told that those who can suffer can equally commit iniuria. 1 Of course, there are some who cannot commit it, such as the deranged [furiosus] and the impubes [child below the age of puberty] who is not capable of wrongful intent [doli capax]; they can suffer iniuria but cannot commit it. For since iniuria consists in the mental state of the one committing it [ex affectu facientis], it follows that these classes, even if they do strike people or shout abuse, will not be regarded as having committed an iniuria .

Conscious wrongdoing ...