A scaling debate on the influence of Roman law in providing the skeleton of present law seems to attribute more weight to the stretch it covers in both the private and public law. Roman law refers to the ancient legal system comprising principles, procedures codified in the twelve tables as guidelines to deal with cases regarding civil wrongs perpetrated against personal interest and the family relations. The modern law of tort represents the social order encouraged through protection of individual interest by restoring the position of the victim against loss, disgorging imputed benefit fro the perpetrator and deterring others from injurious pursuit (Madden, 2005). Law of torts seeks to redress wrongful harm in dimensions from physical injuries, personal insults and damages to property. On the other hand, criminal law represents the penal law where individuals are prosecuted for committing acts identified as crimes that deny public morality and social control –order, safety, harmony and decency (Scheb, 2010).
Roman law Of Delict
The debate of modern law of tort, traces its basis in Delict in the Roman law. The law of the delict in the Roman era emphasized an obligation of paying a mandatory penalty to victims for committing a wrongful act against them. The penalty was however made to the injured party rather than the state. Since the separation of public crimes from private crimes, penalty payments were the sole remedy for private wrongs perpetrated against other individuals. Although the law was penalizing in nature it covered four types of wrongs: furtum (theft, rapina (robbery), injuria (injury), and damnum injuria datum (loss caused by damage to property) where an individual was not to respond through vengeance for wrong committed against by accepting compensation (Buckland, 2007). The law emerged as a transition mark from the code of private vengeance, where one would perform a similar action to the perpetrator, implying an eye for an eye.
In the treatment of cases of injuria, the law was silent where no fixed amount for compensation was agreed upon creating a margin of retaliations from the victim to the perpetrator. In earlier periods, damages were stipulated by law although in the subsequent periods changes were made where damages were determined depending on the magnitude of the presented case (Buckland, 2007). As other sections of the Roman law were repealed, the injuria provision stretched broadly, from physical assault to include defamatory cases and insulting conducts. On the other hand, the coverage of the law of delict concerning damnum injuria extended to slaves, animals and physical properties. For instance, if a slave or grazing animal was unlawfully killed, a penalty amounting to its value in the preceding year was the measure when awarding the compensations (Buckland, 2007). A penalty to damages to the private property was attained using the highest value it attained in a period running back to the past 30 days.
Similarities of Roman delict law to Modern Law of Tort
The modern application of justice on civil wrongs of tort, traces its roots to the Roman law of delict amongst countries, deriving their legal system from the ancient law. On a similar approach contained in the present law of torts, obligations spelt out in the law of delict provided a sharp distinction between the public and the private law. In particular, when distinguishing theft in markets, furtum, where heavier or lesser weight was regarded a wrong if committed knowingly by either party (Plessis, 2010). In the distinction of the states authority in the private law, victims were obliged to accept the principle of non-physical redress instead of physical revenge; where the victims were forced to denounce principles of vengeance and settle for the fixed tariff of alternative satisfaction (Descheemaeker, 2009). Since that time, satisfaction for wrong suffered was settled to be monetary as buying-off consequences for wrongs committed negligently.
The modern law of torts in most legal systems borrows widely from the Roman positions in the delict law. For instance, the accepted interpretation of tort refers to wrongful actions that attract compensations for injuries suffered resulting from wrongful conduct of the perpetrators (Miller & Jentz, 2010). The traditional position of Roman Delict to address wrong interference with rights of other members in the society, called for monetary compensation as remedies to protect against invasion of other individuals’ interests. The nature of tort laws and the delict law seem to offer similar remedies to acts causing destruction or damage to personal property alongside physical assault.
The basic structure of the tort law and delict demonstrates remedies directed to seek justice for wrongs committed against interests of individuals. However, though much is borrowed from the Roman delict in the modern coverage of law of tort, an inclusive approach in tort extends to include intangible interests, reputation, and dignity alongside interests in ones family relations (Miller & Jentz, 2010). Additionally, remedies in torts include compensatory damages as the reimbursement of the plaintiff for actual loss suffered or punitive damages intended to punish perpetrators and deter repetition of such actions. The Roman delict law is a product of action-based remedies formed as penal elements providing compensations to liabilities for wrongful infringement of personality interests, committed negligently or intentionally (Merwe & Plessis, 2004).
Contents of Delict law in modern criminal law
A close observation on the stipulations of the delict reveals links to criminal law though a great division lies in the law of torts. For instance, killing another individual is a criminal wrong where the defendant stands trial for wrongs committed contrary to the state public law. In the delict, interfering with the life of a slave by either killing or causing permanent physical damages attracted compensations to the owner at the highest value attained in the previous year. In addition, the modern criminal law covers acts of theft such as robbery with violence and mugging attracting harsh punishments where perpetrators are condemned or convicted to lengthy jail terms. Contrasting the position of the present criminal law to the delict reveals inclusion of theft, furtum, in marketplaces where intentional or negligence in selling less weight than the required attracted compensations as wrongful act against personal interest. A similar treatment was offered to a buyer who accepted more weight without the knowledge of the selling party. Additionally, the connection existing between delict and criminal law exist in the purposeful nature of the two, particularly to address cases of robbery. Then again, delict emerged to redress wrongful acts which attracted vengeance of a similar nature in avoidance of committing a wrong to solve another wrong. As such, criminal law seeks to avoid principles of vengeance where the state intercepts and takes over cases of actions committed against the public wish.
Conclusively, the line cutting across the criminal and law of tort is evident in the Roman delict law, emerging from the wide coverage and purpose for its existence. Delict law meant to offer remedies for wrongful acts committed against the individuals and eliminate the principles of vengeance common in the society. Similarly, law of tort protects personal interests through compensatory damages while the criminal law seeks to eliminate vengeance. The purpose of the two laws is inclusively covered in the Roman delict law, and thus delict cannot be solely declared to fall under either category.
Buckland, W. W. (2007). A Text-Book of Roman Law: From Augustus to Justinian (3 ed.). Cambrige: Cambridge University Press.
Descheemaeker, E. (2009). The Division of Wrongs: A Historical Comparative Study. Oxford : Oxford University Press.
Madden, M. S. (2005). Exploring Tort Law. Cambridge : Cambridge University Press.
Merwe, C. G., & Plessis, J. É. (2004). Introduction To The Law Of South Africa. Hague: Kluwer Law International.
Miller, R. L., & Jentz, G. A. (2010). Business Law Today: The Essentials (9 ed.). Cengage Learning.
Plessis, P. D. (2010). Borkowski’s Textbook on Roman Law (4 ed.). Oxford: Oxford University Press.
Scheb, J. M. (2010). Criminal Law and Procedure (7 ed.). Belmont: Cengage Learning.