Edited by Eric
Descheemaeker and Helen Scott
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.
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.
