The shift from private law to criminal law
Given man's sinful nature, however, the precepts of the Sermon on the Mount alone do not, unfortunately, appear to guarantee the proper functioning of human society; and thus, if public peace is to be maintained, the delict of iniuria cannot remain entirely without sanction: "...
reipublicae interest, ut hi, qui injuriis alios adficiunt, non puniantur solum, sed et graviter puniantur."[5678] But whether this penalty should be private or public in character was quite a different matter. The actio iniuriarum was the only (civil) actio mere poenalis that had been received from Roman law; and within a law of delict increasingly directed towards the compensation for loss sustained,285 [5679] it was bound to remain something of a corpus alienum. "[In iniuriis] non minus quam in furto atque aliis criminibus vitiositas actus ab effectu discernenda est", as Grotius[5680] had put it: just as in theft and other crimes, the criminality of the act must be distinguished from its effect (that is, the damage caused). To deal with the "vitiositas", the criminal side of the matter, was perceived to be the proper concern of the State; and thus, the imposition of a poena iniuriandi drifted away from private law into the province of criminal law.[5681] But once the actio iniuriarum aestimatoria had been deprived of its main function, the question was bound to arise whether any action at all, on the level of private law, was still apposite as far as the wrong of iniuria was concerned. It was answered with a straightforward "no" by an influential author such as Samuel Stryk. All too often, he claimed,[5682] people tried to enrich themselves by suing upon the slightest occasion on account of an alleged iniuria; and he expressed his surprise at the fact that the actio iniuriarum was not yet counted as a modus adquirendi. Christian Thomasius, of course, who did not even want to accept the actio legis Aquiliae,[5683] was another prominent opponent of the Roman delict of iniuria. Others, while admitting that the actio iniuriarum was "ex parte actoris non prudenter nee generose nee christiane", still regarded it as "juste tamen":[5684] a somewhat lacklustre defence.In the course of the 19th century more and more of the German states abolished the remedy by way of legislation,[5685] and as far as the Reich was concerned, the penal code of 1872 sounded its death knell. Some 19th-century legal writers tried to stem the tide and claim at least a residual field of application for a remedy in private law,[5686] but conventional wisdom was that the delict of iniuria had in its entirety been removed from the scene by the provisions of the penal code.2 4 What were the reasons for this radical departure from tradition?
4.
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