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Iniuria and the Common Law

Eric Descheemaeker and Helen Scott (eds), Iniuria and the Common Law (Oxford: Hart Publishing, 2013), 1-31

Edinburgh School of Law Research Paper No. No 2013/06

28 Pages Posted: 22 Feb 2013 Last revised: 14 Feb 2014

Eric Descheemaeker

University of Melbourne - Melbourne Law School

Helen Scott

University of Cape Town (UCT) - Department of Private Law

Date Written: February 21, 2013

Abstract

This article is the introductory chapter of Eric Descheemaeker and Helen Scott (eds), Iniuria and the Common Law (Oxford: Hart Publishing, 2013), a book which comprises the papers that were presented at a namesake seminar at All Souls College, Oxford, in 2011 by the following scholars: John Blackie, Jonathan Burchell, François du Bois, Paul du Plessis, Anton Fagan, David Ibbetson, Paul Mitchell, Kenneth Norrie and the two editors. The book is a form of ‘oxymoronic comparative law’: that is to say, it employs a concept from one legal tradition (the Roman delict of iniuria, ie insult or contempt) to interrogate another where, on the face of it, it does not belong (the common law, including the mixed legal systems of South Africa and Scotland). Its overall theme and purpose is to consider in what respects the delict of iniuria overlaps with, fall short of or exceeds 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, finally, the degree to which the Roman proto-delict points the way to future development or rationalisation in each of these three legal systems. The introductory chapter seeks, first, to provide a concise account of the Roman law of iniuria and, second, to explore some of the conceptual issues arising from our attempt to examine iniuria from the outside perspective of the common law: these pertain, in particular, to the internal structure of the delict, the place of the actio iniuriarum within the broader context of the punitive and reipersecutory functions of the law, and the relationship of iniuria with the modern common law in the three jurisdictions under examination.

Keywords: Iniuria, insult, contempt, Roman law, English law, mixed legal systems, actio iniuriarum, Roman law of delict, corpus, fama, dignitas, harassment and hubris, Dareau, actio legis Aquiliae, actio de damno dato, Scots law, South African law

Suggested Citation

Descheemaeker, Eric and Scott, Helen, Iniuria and the Common Law (February 21, 2013). Eric Descheemaeker and Helen Scott (eds), Iniuria and the Common Law (Oxford: Hart Publishing, 2013), 1-31; Edinburgh School of Law Research Paper No. No 2013/06. Available at SSRN: https://ssrn.com/abstract=2222370

Eric Descheemaeker (Contact Author)

University of Melbourne - Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Helen Scott

University of Cape Town (UCT) - Department of Private Law

Lovers Walk St
Cape Town
South Africa

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