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

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.

1:3. Roman Law

Early Roman law was simple and pragmatic, arising from an agrarian Italic culture thrust into a role of economic and military dominance. The disparate sources of customary laws were codified initially around 889 B.C. by a panel of ten patrician jurists (Decemvirs) on ten wooden panels, into the “Ten Tables.” This was later expanded by 450 B.C. to the “Twelve Tables” through a process that also included plebian jurists, in a manner that vaguely foreshadowed the Bill of Rights to the U.S. Constitution.

Like other early legal systems, the line between criminal and civil remedies was not clearly delineated. However, personal actions not based on contract, broadly corresponding to torts, were classified as “delicts.” Under the Twelve Tables, the penalty for intentional homicide was blood vengeance at the election of the victim's family, while for an unintentional homicide payment of a prescribed number of cattle or a ram (scapegoat) for ritual sacrifice by the victim's family. For accidental personal injury there was often an election between retaliation in kind or a specified payment. Delicts addressing various categories of property damage required two or three times the amount of actual pecuniary loss.

The Twelve Tables were replaced by the Lex Aquila, enacted by popular plebiscite around 286 B.C. While preserving the general rule of strict liability for one's actions, the Lex Aquila introduced elements of fault and negligence. To encourage truthfulness, there was an early form of “loser pays” rule, as willful denial of a meritorious claim could result in doubling of the damages awarded. The Lex Cornelia (c. 67 B.C.) adjusted monetary remedies upward to account for four centuries of inflation since adoption of the Twelve Tables.1

Throughout Rome's thousand-year run as the dominant western power, its laws were continually reformed, refined, and influenced by legal scholars, culminating in the Justinian Code. Except for the limitations inherent in a class-conscious, patriarchal society heavily dependent on a slave economy, Roman law provided the foundation for civil remedies for personal injury, including (1) money damages as the dominant remedy in resolving civil disputes; (2) the identification of instances in which strict liability for the consequences of one's actions might not apply, such as in the instance of action not voluntarily taken; (3) transparency in judicial decision making as Praetors were required pronounce the law they would apply; and (4) judicial discretion to determine when strict application of legal rules, or the absence of rules and remedies, would produce a manifestly unjust outcome.2

1 M. Stuart Madden, The Graeco-Roman Antecedents of Modern Tort Law, 44 Brandeis L.J. 865, 888-901 (Summer 2006).

2 M. Stuart Madden, The Graeco-Roman Antecedents of Modern Tort Law, 44 Brandeis L.J. 865, 909 (Summer 2006).

On May 22, 2018, former State Bar of Georgia president Ken Shigley will be a candidate for election to the Georgia Court of Appeals. The only other candidate is Ken Hodges, a former Dougherty County District Attorney. Ken Hodges was the Democratic Party nominee for Attorney General in 2010.

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