Iniuria and the Common Law

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.

Auteur

Eric Descheemaeker is a Lecturer in European Private Law at the University of Edinburgh.
Helen Scott is an Associate Professor in the Department of Private Law at the University of Cape Town.

Contenu

1. Iniuria and the Common Law
   Eric Descheemaeker and Helen Scott
   
   2. Iniuria, Roman and English
      David Ibbetson
   3. The actio iniuriarum in Scots Law: Romantic Romanism or Tool for Today?
      Kenneth McKenzie Norrie
   4. Solatium and Injury to Feelings: Roman Law, English Law and Modern Tort Theory
      Eric Descheemaeker
   5. Dissimulatio
      Paul Mitchell
   6. Contumelia and the South African Law of Defamation
      Helen Scott
   7. An Infringement of the corpus as a Form of iniuria: Roman and Medieval Reflections
      Paul J du Plessis
   8. The Protection of corpus in Modern and Early Modern Scots Law
      John Blackie
   9. The Gist of Defamation in South African Law
      Anton Fagan
   10. Retraction, Apology and Reply as Responses to iniuriae
       Jonathan Burchell
   11. Harassment: A Wrong without a Right?
       François du Bois