1. Iniuria in the XII Tables

Iniuria was a complex and intriguing concept. As one of the requirements for Aquilian liability it was taken to embrace the notions of wrongfulness and fault.^[5443] Apart from that, however, it had a further, more specialized meaning.

"quod non iure fiat: omne enim, quod non iurc fit, iniuria fieri dicitur. hoc gcneraliter. spccialitcr autem iniuria dicitur contumelia."

In this latter sense, iniuria was a delict in its own right, and thus it was not the actio legis Aquiliae but an actio iniuriarum that provided protection for the injured party.

The historical origin of the actio iniuriarum appears to lie in tab. 8, 4 of the XII Tables, the text of which was either "Si iniuria alteri faxsit, XXV poenae sunto" (this is the version handed down to us by Aulus Gellius)^[5445] or, as many modern editors will have it, "Si iniuriam [alteri?] faxsit,...".^[5446] Depending on whether one chooses to follow Gellius^[5447] or the modern emendation, the XII Tables thus contained a delict of "iniuria alteri facere" (in the sense of "to act in a wrongful manner with regard to somebody else") or of "iniuria".^[5448] But, whatever the answer to this problem, it is obvious that tab. 8, 4 must be read in conjunction with the two provisions that preceded it. These were tab. 8, 2 ("Si membrum rupsit, ni cum eo pacit, talio esto") and tab. 8, 3 ("Manu fustive si os fregit libero, CCC, si servo, CL poenam subito"). Membrum ruptum was probably^[5449] the mutilation of a limb, a particularly severe infringement of the victim's bodily integrity. Tab. 8, 3 dealt with the mere breaking of a bone, committed by a blow with hand or stick^{[5450] [5451] and iniuria (or iniuria alteri facere), in turn, must have covered physical assaults of an even less serious nature: a slap in the face, a blow or a kick, a box on the ear or a stroke with a stick (that did not have either of the consequences contemplated in tab. 8, 2 or 8, 3).y This gradation was clearly reflected by the penalties imposed in each of these three instances. In the case of membrum ruptum, the old and somewhat crude lex talionis still prevailed;[5452] the victim of the wrong was not obliged to accept a composition offered by the wrongdoer (or his relatives) but could avenge the wrong by doing to the wrongdoer what he had done to him. For os fractum and iniuria, on the other hand, the principle of retaliation had already been abandoned, and the delinquent was allowed to expiate the wrong by paying a specific sum of money. This sum varied according to whether (in the case of os fractum) the injured person was a free man or a slave;[5453] for injuria the penalty was 25 asses.}

2.