Re: Summers v Tice (and Copyright?)

On Fri, 4 Aug 2000, David Hale <dhale[_at_]aggt.com> wrote:
>
> This is correct. Tort law, in the Anglo-Saxon common law tradition,
> far pre-dates the Industrial Revolution. It also far predates any
> other kind of law, including criminal law. The law of the Angles
> and the Saxons (and most Germanic tribes as well) in the period
> between the fall of the Roman Empire and the rise of the Holy Roman
> Empire was based almost exclusively on tort law and the concept of
> wergild or man-price. Injuries to people or objects were assigned
> a price, to be varied according to circumstances. If you, say,
> killed someone, you had to pay his family that person's man-price.
> This price was generally more than anyone could afford, so
> involuntary servitude generally followed. Of course, as a slave,
> you could be killed with impunity.

That is not quite correct. In the first place it is a bit of a stretch to trace the common law back to Anglo Saxon times. But if one does go back to Anglo Saxon times, I think it will be apparent that most of the law was concerned with rights, not wrongs, and that the remedies were restitutionary. One had the right to get back a stolen chattel or to recover a piece of land. And if you killed someone, the victim's family had the right to recover the victim's value. There was no question of whether the killer had done anything wrong -- if you killed somene the victim's family were entitled to the wergild. That is almost the opposite of a tort action; it is purely value restitution.

When one gets to the common law -- and the first real treatise on the common law was Glanvil's ``Laws and Customs of England,'' published around 1186, one finds that there were no tort actions at all. (There was a procedure known as appeal, which combined some aspects of modern tort and criminal law. The action was commenced by a private party, but with the possible exception of an appeal for petit larceny, the successful ``plaintiff'' did not recover anything but revenge: the defendant as executed and his estates were forfeit to the crown.)

What there were were purely restitutionary, droitual actions, based on the plaintiff's right (droit), not on the defendant's wrong (tort). The most important of these actions were the real actions for the recovery of land. But there was also detinue for the recovery of a chattel and debt for the recovery of a debt. (Debtinue and debt were really one action.) And there were also restitutionary actions of account and covenant.

Glanvil doesn't recognize any tort action; at his time there was apparently neither trespass nor trespass on the case. Those two actions make their appearance before 1250, however, and in a couple of hundred years theeir descendents cover not only the whole area of torts, but also come to replace the older restitutionary actions, with the development of ejectment, trover, and assumpsit. These new actions were formally tort actions, but they were still droitual and restitutionary in nature, although, except for ejectment, they only gave the plaitiff value restitution.

> Note the above is a broad generalization. There were many variations
> across regions and across time. The main point is that, yes, tort
> law is ancient.
>
> On the other hand, most of the more nebulous, negligence based torts
> did arise in the last 200 years, generally in response to the
> Industrial Revolution. Nothing makes new laws like thousands of
> people dying needlessly.

Were the latter claim true, surely wars would be the greatest cause of new laws.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu/ 
        NOTE: junger[_at_]pdj2-ra.f-remote.cwru.edu no longer exists