The longer I live, the more I think that all I know about the law can be found in Holmes, The Common Law and Pound, The Spirit of the Common Law.  It was with some relief in these dark times that my eye today fell on this passage from the former – ‘the original Roman law dealt with injury to the person under the head of insult’.  What balm to a beleaguered mind and psyche.

My red leather-bound version of Buckland, A Text-Book of Roman Law, Cambridge, 1921 runs to 756 pages.  You don’t get learning like this any more – even at Cambridge.  The subject of delicts (our torts or civil wrongs) occupies just 27 pages.  Its treatment on Injuria covers only four pages, but it does look to me to be clearly ahead of our law. 

Buckland tells us that as a ‘special delict,’ inuria, meant contumelia, insult or outrage.  This wrong rested not on economic loss, but on outraged feelings.  The plaintiff had to claim the nature of the inuria complained ofand the damages he claimed. 

Convicium involved public insult.  The wrong consisted of –

outrage or insult or wanton interference with rights, any act, in short, which showed contempt of the personality of the victim or was of a nature to lower him in the estimation of others, and was so intended.  All that was needed was that the act be insulting in kind and intention, and unjustified.

Well, there is law stated crisply.  And students of the history of our law will see immediately the connection between this wrong and the primal common law action for trespass.  The conduct complained of is precisely that which can lead to a duel – or a breach of the peace of the king.  And that goes to the core of the history of our common law.

Let us look at what the language of the Roman law entails for us in English – with just the Compact OED.  To ‘insult’ someone is to speak to or treat them with ‘disrespect or abuse’.  ‘Contumely’ involves ‘insolent or insulting language or treatment.’  ‘Insolent’ means ‘rude or disrespectful’.  ‘Contempt’ means ‘the feeling that a person or thing is worthless or deserves no respect at all’.

All that sounds to me so appropriate to describe what so often happens when we the voter or customer deal with a government department or major trading corporation like a bank.  We feel like they have been rude and abusive and shown us no respect – we have just been used in a way that involves abuse.  Have we no worth at all?

And under the law of ancient Rome we might have been able to sue the offender.  ‘All that was needed was that the act be insulting in kind and intention, and unjustified.’

Some here speak wistfully of a tort called, say, ‘outrage’.  There is no such thing.  The closest we come is that damages may be increased in order to punish the offender – that is, in order to deter them from repeating their misconduct. 

Those damages at common law are called ‘punitive’, and they sit oddly as part of our civil law.  But in order to claim that remedy, you must be able to point to an established category of wrong – and we do not have a wrong of insult or outrage. 

I very much doubt whether the courts now can develop that law, and our parliaments should give some thought to it.  It looks to me to be worth considering when you look at the bruising failures of courtesy and civility all around us.  Any such remedy could be reserved exclusively for major government or corporate targets who are in a position to take steps to improve their conduct in the future. 

It could do the world of good to the CBA, Qantas, Telstra, Foxtel, Centrelink and the like – bodies that send shivers down the spines of the rest of us.  A good hard smack occasionally could do a power of good.