Chapter 1. A 4,000 Year Perspective on Tort Law - Greek Influences

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.

1:2. Greek Influences

A millennium after Hammurabi, the mythic roots of unwritten Greek customary law appeared in the poetry of Hesiod (c. 700 B.C.) and histories of Herodotus (c. 484--425 B.C.). The emphasis was on fairness and integrity of judges more than the specifics of rules and doctrine, as judges were chosen by the parties much as private mediators and arbitrators are chosen today. However, running through this era was a growing preference for resolving disputes through just compensation rather than the bloody retribution and feuds of old. As Greek philosophy formed the bedrock layer of western political thought, principles of corrective justice emerged. Plato, in The Laws, wrote of “little repeated torts between neighbors” for which there was strict liability to others for either personal harm or invasion of property, and awards of a multiple of pecuniary damages for “churlish” conduct. Aristotle, in Nichomachean Ethics, taught the rectification of marginal inequality created by involuntary transactions in which either an intentional act or an unintentional “mistake”--equivalent to concept of negligence in modern tort law--caused foreseeable injury. The amount of inequality to be rectified was the community's valuation the physical injury due to the defendant's wrongful act. Pericles and Protagoras debated theories of negligence, imputed liability and proximate cause.1 Customary Greek law was first codified by Dracon (c. 622 B.C.), with penalties so harsh as to give us the word “draconian” and as to require reform within a generation. By 594 B.C., Salon was given a year to reform the Athenian constitution, legal code and law courts. Under the Code of Salon, juries of as many as 500 members determined both fault and penalties, a spectacle against which even those who trust modern juries would recoil.2

1 J. W. Jones, Law and Legal Theory of the Greeks 262 (1956); Stone, A Problem for Pericles, 59 Cal. L. Rev 769 (1971).

2 M. Stuart Madden, The Graeco-Roman Antecedents of Modern Tort Law, 44 Brandeis L.J. 865, 877 (Summer 2006); Plato, The Laws; Aristotle, Nichomachean Ethics, Book V.