The Measure of Recovery
I know that we have not even reviewed the kinds of conduct for which the defendant might face an actio iniuriarum. It is odd to go straight to the plaintiff's measure of recovery.
However, if we have the structure of the action right, there is no doubt that settling the angle of approach to quantum would be crucial in determining the scope of actionability. So far we have an action for wrongs which are to be assessed in money on the basis of bonum aequum. All very vague. Once you determine the angle of assessment, however, you will begin to know what wrongs are in question.The critical statement is negative. The evaluation is not of damnum. It is not about loss. That is the province of the lex Aquilia. When loss is seen to be taken out by that statute, not much choice of angle is left. The non-economic interest more or less has to be solace for pain and suffering. That itself offers choices. There can be a limit to physical pain or a larger view can be taken so that pecuniary solace is extended to wounded feelings, in the sense of outrage, affront, humiliation. That was the line which was taken. Negatively the condemnation was not to be concerned with damnum, positively it was to be directed at conÂtempt, contumelia, the outrage felt by the plaintiff. If you have your face slapped there is some physical pain. But you burn inside. The psychoÂlogical pain is much worse than the physical. You feel outraged, belittled, held in contempt. That is contumelia, ultimately the hallmark of this delict.
How early was it settled that the condemnatio was to be a solace for contumelia? It is difficult to say. The negative proposition that it was not about damnum was probably understood by as early as 100 bc. CapturÂing the precise positive angle probably came later, perhaps in the early Principate.
Gaius wrote about ad 160. By his time all this had long been known and understood.
But even his treatment contains evidence that conÂtumelia, contempt, worked its way into the delict from the measure of recovery. In dealing with the substantive scope of the liability, the conduct which would trigger it, he gives no prominence at all to contumelia. He mentions it once, obliquely. This very low profile which contumelia has in Gaius is concealed in translation if iniuria is rendered as â€?contempt’ or, as in Zulueta, â€?outrage’.[74] But Gaius’s treatÂment of the measure of recovery takes the contumelia basis of the award for granted. He explains the system whereby the plaintiff names his own sum by way of maximum and then goes on, at G.3.224-5, to deal with the special case of atrox iniuria (aggravated wrong). Here, if you name the same sum in your formula as the praetor fixes for vadimonium (security for re-appearance), the iudex will in practice not go below that sum. What is atrox iniuria? Gaius divides the aggravations between ex facto, where there is a serious wound or flogging, ex loco where the deed is done in public, ex persona where the wrong is offered to a magistrate or to a senator by a humble person. If no other case suggested it, atrocitas ex persona, aggravation by personal status, would make quite plain the assumption of a contumelia base for the award.In the Digest Ulpian is recorded as asserting confidently that the specialised sense of iniuria as an independent delict is contumelia.[75] Justinian’s Institutes 4.4, De Iniuriis, begin with a similar assertion, rather insensitively expressed.[76] We will come back to that. What I have been suggesting is that the engine driving that specialisation was the need to understand how to approach the quantification of damages under the words quantum pecuniam... bonum aequum videÂbitur... condemnari. If the award of money was designed to solace wounded self-respect, contumelia not damnum, that would necessarily work back into the substance of the action. It would shape and limit the conduct actionable. The iniuriae within the actio iniuriarum, wrongs within the action for wrongs, would become the contempt-wrongs, the ones with the effect of wounding self-respect.
4.
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