Chapter 1. A 4,000-Year Perspective on Tort Law - Early Beginnings

Following is an excerpt from Shigley & Hadden, Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters / Westlaw, 2010- present). The lead author, Kenneth L. Shigley, has served as president of the State Bar of Georgia (2011-12), chair of the Institute for Continuing Legal Education in Georgia Board of Trustees (2012-13) and chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section (2015-16). The entire book may be purchased at or accessed through Westlaw.

1:1. Early Beginnings

This is a practical book for lawyers laboring in the often muddy trenches of the law. It is to jurisprudential theory as auto mechanics is to quantum physics. Before delving into the pragmatic details of personal injury litigation, however, there may be value in a quick look at the history, purposes, and policy of tort law.

Although academic classifications of “tort” and “contract” law did not coalesce until the nineteenth century, the roots of both are much deeper.1

The story of what we now classify as tort law began in ancient Sumeria, the likely birthplace of Abraham set among the shifting navigational channels and irrigation canals where the Tigris and Euphrates rivers emerge into the Persian Gulf in what is now southern Iraq and Kuwait. The same culture that developed the wheel, written language, mathematical notation, specialization of labor, the plow, the potter's wheel, glass, beer, and urban life advanced the seminal development of law. Much as later American tort law would emphasize business, insurance, motor vehicles, and manufactured products, Sumerian laws focused on the particulars of their social and economic context, as they devised rules for orderly compensation gradually supplanting the instinct for uncontrolled revenge. The Laws of Ur-Nammu (c. 2112--2085 B.C.) mandated compensation in silver for putting out a man's eye, and the Code of Lipit-Ishtar (c. 1934--1924 B.C.) set a negligence standard for property damage to a house. The Sumerian city-state of Eshnunna developed a legal code (c. 1900 B.C.), that expanded upon these principles of compensation for damages done to another, addressing conflicts over sunken boats, gored oxen, biting dogs, and collapsing walls.2

A couple of centuries later--after Sumerians migrated upstream in the Tigris-Euphrates river valley, Amorites conquered Sumer, and Babylon emerged to dominate Mesopotamian culture--Sumerian laws became the foundation of the Code of Hammurabi (c. 1700 B.C.). Included were early versions of the principal features of tort liability--intentional tort, negligence, strict liability, indirect causation, fixed versus variable compensation, notice, knowledge, objective standards for conduct, monetary compensation for private harms, and perhaps even contributory negligence. The Code of Hammurabi would heavily influence the legal systems of the Middle East for a thousand years or more.3

Trekking westward through the desert from the ziggurats of Mesopotamia to the pyramids along the Nile, along the route of Abraham, Isaac, Jacob and Joseph, we find the Egyptians relying upon criminal punishments with no apparent theory of legal compensation for private wrongs similar to later tort law.4

But when Moses led the Hebrews out of Egyptian slavery (c. 1440--1290 B.C.), the Mosaic laws included distant echoes of Eshnunna and Hammurabi. The Torah is “filled with what we think of as ‘tort’ rules,” indicating “the depth of the roots of tort law in the Judeo-Christian tradition.” 5 Precursors of tort law in the Pentateuch include the spreading fire,6 the straying livestock,7 the uncovered pit,8 the bull goring another bull (property damage),9 the bull goring humans (personal injury),10 the injunction to maintain a railing around one's roof,11 compensation for accidental injury of one man by another swinging an ax, and the principle that one man quarreling with and injuring another man must pay the wages of the injured man until he recovers.12

1 Goldberg, Ten Half-Truths About Tort Law, 42 Val. U. L. Rev. 1221 (Summer 2008).

2 See J.J. Finkelstein, Collections of Laws from Mesopotamia and Asia Minor in The Ancient Near East: Supplementary Text and Pictures Relating to the Old Testament 87 (James B. Pritchard, ed., Princeton U. Press 1969).

3 Nelson P. Miller, An Ancient Law of Care, 26 Whittier L. Rev. 3 (2004).

4 Russ VerSteeg, Law in Ancient Egyptian Fiction, 24 Ga. J. Int'l & Comp. L. 37 (Spring 1994).

5 Douglas H. Cook, Negligence or Strict Liability? A Study in Biblical Tort Law, 13 Whittier L. Rev. 1 (1992); Special Committee on the Tort Liability System, Towards a Jurisprudence of Injury: The Continuing Creation of a System of Substantive Justice in American Tort Law, Committee Preface 1-1 (1984).

6 Exodus 22:6.

7 Exodus 22:5.

8 Exodus 21:33.

9 Exodus 21:35.

10 Exodus 21:36.

11 Deuteronomy 22:8.

12 Douglas H. Cook, Negligence or Strict Liability? A Study in Biblical Tort Law, 13 Whittier L. Rev. 1, 7-12 (1992).