Suing the Latin Way



si arbor ex vicini fundo vento inclinata in tuum
fundum sit [ex lege xii tabularum] de adimenda
ea … agere potes.
If the wind has made a tree fall over onto your property
from your neighbor’s property, according to the Twelve
Tables you can bring legal action to have it removed.

Fragments of Early Latin (.Warmington) 3.472. vii.9b.

The Greeks, it is said, left us metaphysics; the Romans, it is clear, left us law.  Which is the more meritorious inheritance I leave to you to decide.

Our own legal system, like those of many European countries, owes no minor debt (not least of all in its opulent use of Latin phrases and a pervasively latinate terminology) to the codification, in the 530s A.D. under the direction of the emperor Justinian, of over a thousand years of Roman legal practice and theory.

Some of Rome’s most influential jurists, like Gaius in the second century A.D. or Papinian and Ulpian in the early third, had previously put together various monographs, epitomes, “digests” of laws, legal precedents and judicial theory as they had evolved since the time of the Twelve Tables in the middle of the fifth century B.C. (although this was the “golden” age of Greek culture, for the Romans of Cicero’s day it represented a time so remote from their consciousness as to have acquired a kind of quasi–legendary status).  Tradition reports that these “Tables,” supposedly displayed in the forum of the day, were the earliest systematic formulations of Roman law;  they are no longer known to us from the originals but in countless citations, discussions, reshapings and paraphrases scattered throughout the legal and historical works of Roman lawyers, scholars and antiquarians.

In the Roman legal mind, the Twelve Tables occupied roughly — if much more hazily — the same position as the basic documents bequeathed to us by the founders of our nation — the fons et origo from which flow the administration and legitimation of daily proceedings in the law courts where people, businesses and organizations deal with each other’s intransigences. Although there is plenty of evidence from the Twelve Tables that even at that very early stage (fifth century B.C.) of Roman civilization there was considerable interest in higher matters like religious and testamentary law, what attracts me for present purposes is the timelessness of the later sections of the Tables. Here we find, in however lacunose a condition, what we would probably think of as tort law.

We may complain openly to ourselves about being the most litigious society on earth (not, of course, because you or I sue but because everybody else does), but the ancient Romans were from their very beginnings certainly no strangers to this practice of seemingly perennial popularity. (Nor were the classical Greeks slouches in this regard, for that matter.)

Using magic, for example, to harm somebody’s crop could land you in big trouble (one reads from time of similar situations in the modern world).  And slander, which was associated with magical incantations sufficiently efficacious to have traduced, insulted or otherwise adversely affected an individual, was a serious enough crime that someone convicted on this charge could be publicly beaten to death with clubs (ut fustibus ferirefur [Table viii. I]). From that rebarbative perspective, perhaps even a million-dollar lawsuit doesn’t seem quite so frightening.

Libel as such appears not to have received much attention, probably because of the low rate of literacy and the lack of serious analogues to our grocery store “tabloids” and their scandalized tales of human foible — in antiquity that function was well vested in the textual embroideries of cruel myths, courageous legends and clever folk tales.

We all have neighbors of one sort or another (mine, for the record, are fine people), and their behavior can elicit from us groans of dismay or hosannas of delight.  Even the Greek poet Hesiod, a good 300 or 400 years before the time of the Twelve Tables, commented pithily on the nasty rivalry that can spring up between neighbors in their pursuit of private advantage (Works and Days 23-24)

If you are responsible for an accident with your car, let’s hope you’re carrying plenty of insurance. Liability loves ownership. Some societies have not had much use for the notion of property rights and codified accountability, but the Romans were surely not among them.  A law in the Tables (viii.6) observes, for example, that if your animal causes harm, some “offer of estimated payment for damages” (aestimationem noxiae offerri) is to be forthcoming – perhaps not so different from today;  the ancient Roman could also have demanded that the animal itself be handed over, but I hardly imagine a modem plaintiff wanting your wrecked car.

One gets the impression today that judicial proceedings for the seeking of monetary redress of private injury are resorted to excessively and at times frivolously, but they nonetheless have a very, very long history in Western culture.  As such, they have no doubt prevented many a feud between individuals or families from feeding a hunger for revenge and consuming villages or entire societies.

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