The Early History of Iniuria

The Early History of Iniuria THE EARLY HISTORY OF INIURIA by PETER B. H. BIRKS (London) I. The Problem of the Delict's Name The trespasses of the Lord's Prayer are wrongs, in the widest sense. When the word was common outside the law, it bore that general meaning. Yet in the English common law it seemed that trespass had always been a direct and forcible harm, a particular tort. Until quite recently this would have provided as good mate- rial as any to one wishing to illustrate the perverse capacity of lawyers to abuse ordinary language. But three articles by Pro- fessor Milsom showed that trespass did not come into the com- mon law fully formed 1). Thirteenth century lawyers used the word much in the modern sense of "tort". The development of the technical term was an explicable process. The old lawyers did not lack common sense, they did not seek to distort the lan- guage of the day, until the peculiar logic of their profession brought them to it by degrees. Professor Milsom's illumination of the story of English tres- pass throws a tantalising light on the problems of the Roman iniuria. For in the earliest surviving literature iniuria has all http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The Legal History Review / Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit Brill

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Publisher
Brill
Copyright
© 1969 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
0040-7585
eISSN
1571-8190
D.O.I.
10.1163/157181969X00157
Publisher site
See Article on Publisher Site

Abstract

THE EARLY HISTORY OF INIURIA by PETER B. H. BIRKS (London) I. The Problem of the Delict's Name The trespasses of the Lord's Prayer are wrongs, in the widest sense. When the word was common outside the law, it bore that general meaning. Yet in the English common law it seemed that trespass had always been a direct and forcible harm, a particular tort. Until quite recently this would have provided as good mate- rial as any to one wishing to illustrate the perverse capacity of lawyers to abuse ordinary language. But three articles by Pro- fessor Milsom showed that trespass did not come into the com- mon law fully formed 1). Thirteenth century lawyers used the word much in the modern sense of "tort". The development of the technical term was an explicable process. The old lawyers did not lack common sense, they did not seek to distort the lan- guage of the day, until the peculiar logic of their profession brought them to it by degrees. Professor Milsom's illumination of the story of English tres- pass throws a tantalising light on the problems of the Roman iniuria. For in the earliest surviving literature iniuria has all

Journal

The Legal History Review / Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du DroitBrill

Published: Jan 1, 1969

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