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The common law, despite procedural divisions, has only ever had one
class of civil wrongs. The civilians, by contrast, have typically
split their law of wrongs in two, one group being called "delicts"
and the other "quasi-delicts." Yet this division, which originated
in Roman law, remains mysterious: it is clear neither where the
line was drawn nor why a separation was made along this line.
This book does two things. In the first two parts, it investigates
the origins of the division and its development in a modern
civilian jurisdiction, France. What is argued for is that the Roman
dichotomy was originally one between fault (culpa)-based and
situational liability, which was prompted by a historical
contraction of the Roman concept of a wrong (delictum). French law,
building on medieval interpretations of the division, redrew the
line one level higher, between deliberate and negligent wrongdoing.
By doing so, it involved itself in severe taxonomical difficulties,
which the book explores.
The third part of the work concerns itself with the significance of
the civilian division of wrongs according to degrees of
blameworthiness (dolus, culpa, casus) for the common law. A
provocative thesis is developed, in effect, that there is a strong
case for the adoption of a similar trichotomy as the first-level
division of the English law of civil wrongs. From its formulary
age, English law has inherited an unstable taxonomy where wrongs
intersect. The existence of these mismatched categories continues
to cause significant difficulties, which a realignment of causes of
action along the above lines would rectify.
The delict of iniuria is among the most sophisticated products of
the Roman legal tradition. The original focus of the delict was
assault, although iniuria-literally a wrong or unlawful
act-indicated a very wide potential scope. Yet it quickly grew to
include sexual harassment and defamation, and by the first century
CE it had been re-oriented around the concept of contumelia so as
to incorporate a range of new wrongs, including insult and invasion
of privacy. In truth, it now comprised all attacks on personality.
It is the Roman delict of iniuria which forms the foundation of
both the South African and-more controversially-Scots laws of
injuries to personality. On the other hand, iniuria is a concept
formally alien to English law. But as its title suggests, this book
of essays is representative of a species of legal scholarship best
described as 'oxymoronic comparative law', employing a concept
peculiar to one legal tradition in order to interrogate another
where, apparently, it does not belong. Addressing a series of
doctrinal puzzles within the law of assault, defamation and breach
of privacy, it considers in what respects the Roman delict of
iniuria overlaps with its modern counterparts in England, Scotland
and South Africa; the differences and similarities between the
analytical frameworks employed in the ancient and modern law; and
the degree to which the Roman proto-delict points the way to future
developments in each of these three legal systems.
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