Iniuria and the Common Law

Iniuria and the Common Law

Iniuria and the Common Law

Iniuria and the Common Law


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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.

Product Details

ISBN-13: 9781849465038
Publisher: Bloomsbury Academic
Publication date: 08/22/2013
Series: Hart Studies in Private Law , #9
Pages: 276
Product dimensions: 6.14(w) x 9.21(h) x 0.69(d)

About the Author

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.

Table of Contents

Preface v

Conference Participants vii

Acknowledgements ix

Contributors xiii

Table of Cases xv

Table of Legislation xxv

Historical Sources xxix

1 Iniuria and the Common Law Eric Descheemaeker Helen Scott 1

2 Iniuria, Roman and English David Ibbetson 33

3 The actio iniuriarum in Scots Law: Romantic Romanism or Tool for Today? Kenneth McKenzie Norrie 49

4 Solatium and Injury to Feelings: Roman Law, English Law and Modern Tort Theory Eric Descheemaeker 67

5 Dissimulatio Paul Mitchell 97

6 Contumelia and the South African Law of Defamation Helen Scott 119

7 An Infringement of the corpus as a Form of iniuria: Roman and Medieval Reflections Paul J du Plessis 141

8 The Protection of corpus in Modern and Early Modern Scots Law John Blackie 155

9 The Gist of Defamation in South African Law Anton Fagan 169

10 Retraction, Apology and Reply as Responses to iniuriae Jonathan Burchell 197

11 Harassment: A Wrong without a Right? François du Bois 215

Index 241

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