The Scope of the Classical Delict

This is Gaius's first paragraph on iniuria, at G.3.220:

Iniuria is committed not only when someone is struck by, say, a fist or a stick or even beaten up, but also if a convicium is perpetrated against someone, or if someone advertises a person's goods to be sold off to pay debts knowing that that person owes him nothing, or if someone writes a pamphlet or poem defaming another, or if someone follows around after a woman or a boy, or in short in many other ways.

Having already looked at the edict, we are in a position to see this list as something more than a rambling miscellany. What it obviously does is to work through the rubrics which we have met. First, physical injuries within the example used in the specimen formula of the general edict, then convicium, then two cases of infamandi causa facta and finally one of adtemptata pudicitia. There is a change from the edictal order, probably in order to bring convicium into juxtaposition with infamandi causa facta. After the list of edictal examples, comes the devastating phrase �and in short in many other ways'. He gives no guidance, and the list does not obviously reveal any principle upon which further illustrations might be constructed. How would Gaius himself have explained what facts would and what facts would not fit under this very open-ended phrase? That is the key question. Both limbs of it are important. A boundary is only defined if one can say which cases fall each side of it. With iniuria the question which receives little attention is the negative one, What conduct will not be actionable under this head?

The quantum of doubt should not be exaggerated. Gaius's edictal examples pin down most of the delict's content. The Digest title 47.10 follows the same pattern, still working through the main edictal heads. Given a set of facts a classical jurist would certainly have started by asking himself whether they could fit under one of these edictally established cases.

We have already seen that contumelia was the specialised sense which iniuria acquired as the name of this delict. �Contumely' is not a good translation. For us it tends to mean no more than �abuse', though the adjective �contumelious' is wider. I have been using �contempt'. Whatever the word, the underlying idea is of attaching so much importance to oneself, blowing oneself up to such a size, that one can belittle others. Queue-jumping is a good example. You have been waiting at the bus-stop for half an hour. I sweep in at the front of the line. If you do no more, you think �Who does he imagine he is?' Or take talking during a play. �Don't they think there is anyone else here?' Or hitting.

The question of the limits of the classical delict can be restated: Would the jurist faced with novel facts merely ask whether they amounted to a contempt? Suppose two modern examples. A owns a shop. When B comes in, A orders him to leave. The altercation reveals that the reason is simply that A hates B. There is no suggestion that B is a thief or a debtor or the carrier of an infectious disease. A simply cannot stand him. Then, X is going to marry Y. X happens to be the most famous person in the land. Overnight the hitherto private Y is dragged into the light. She is hounded by the press. Without putting a foot on private land Z pulls off the ultimate coup, a photograph ofY in the nude. Has A or Z committed an iniuria?

Both will want to object that they have done nothing contra ius, unlawful. Z will in addition feel able to say that he intended no contempt of Y. He was a journalist, just doing his job, he had no feeling against Y. In fact he thought she was marvellous in every way.

Let us deal with Z's additional argument first to put it aside. Liability in iniuria does not necessarily require a specifically contemptuous intent. Contempt is usually an inference from deliberate wrongfulness. If I hit you in the face on purpose it is no good my saying that I never heard or thought about hubris. Similarly the too persistent lover when he oversteps the mark with his appellare or adsectari may say that he intended no contempt. Far from it. His libido was simply on fire. The answer is, contumelia is an inference drawn by a notional bystander, the court itself. Who does he think he is? Who does he think he is, treating her like that? A specific intent to contemn is not necessary where the conduct is intentional and wrong.

Unlike Z, A did intend to contemn B. His conduct was contemp­tuous in intent and in effect. The bystander sees B humiliated and that is what A wanted.

We know that right and proper acts (mourning one's dead father) can be made unlawful when done infamandi causa.¹⁴ If A ordered B out of his shop to defame him, he would be guilty of iniuria. It would then do him no good to say that he could choose who should and should not enter his shop, just as lawfully as he could prefer to drink with his friends rather than his enemies. So we know that one intent, intent to defame, could make conduct unlawful. But could general hatred or spite do the same? This is as much as to say, Is intended contumelia enough in itself ?

Without answering that for the moment, let us look at Z's case. We have dealt with his argument about intent. His other point is that in taking the photo he did nothing unlawful. Sophisticated equipment saved him the trouble of leaving the public road outside Y's house. It is not unlawful, he says, to take photographs across private land. The other examples given earlier, invading a man's land, forbidding him the use of his own property or the exercise of a public right, are different precisely in being demonstrably unlawful without relying on the workings of this delict. The answer to this is that contravention of positive law is not required. If it were, the delict would ossify, or very nearly. But evidently the standards in question are bonum aequum and boni mores, not positive law but prevailing reasonableness. As the edict expressly says in the case of convicium and adtemptata pudicitia, the question is whether Z has acted contra bonos mores. Judged by that standard, is his conduct quod licet (what is allowed) or quod non licet (what is not allowed)?

A Roman iudex deciding this case, or jurists contemplating it, would find it difficult. We have brought him to Scotland, in 1982, and he must decide according to the mores huius civitatis, the standards of this society. This society, however, is rather unclear on the line between allowable and not allowable in relation to public figures.

Now back to A. He says, accepting that the standard to be applied is social morality not positive law, that you must be able to show independently of intent, just as you can in Z's case, that what was done was impermissible. That must be wrong as a general proposition. Infamandi causa facta prove it. B who was ordered out of the shop builds on from Ne quid. He says that anything at all, however lawful and proper in appearance, becomes impermissible when done out of hatred or spite. That must be wrong too. If it were not I should have to give good reasons for not voting for your membership of a club, for not employing you, for not trading with you.

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Above, 228.

The truth lies in the intermediate position. The judge must find that the conduct complained of, as a whole taking acts with intents, was impermissible according to the standards of the time and place. Let us add a new fact to the case of A and B. A is an anti-Semite, and he thinks B is Jewish. Now he is certainly liable to the actio iniuriarum. Even if the mores huius civitatis in general allow A as a shopkeeper arbitrarily to exclude anyone whether white, black, male, female, protestant, cath­olic or jew, they do not allow exclusion of anyone because they are white or Jewish or gentile and so on. Some intents moribus improbant are condemned by current standards; others, even some that are not laudable, are allowed. �No coaches', �No trippers', �Nobody without a coat and tie', �No football supporters'—these exclusions are probably on the safe side of the line. �No blacks' or �No protestants' are not. Those certainly do offend, and not merely the feelings of the victims. They offend the standards by which we now divide what, even if unkind, is allowable from what is downright impermissible.

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