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DOI: 10.1111/j.1748-121X.2010.00191.x

Despite the limited exception introduced by statute in 1974, the principle that truth is and ought to be a complete defence to all actions in defamation is typically regarded as self-evident in modern English law. The fact that England stands here against not only the whole of the civilian tradition but also a number of common-law jurisdictions suggests, however, that it is not. This article, after surveying the history of the principle in English law and the debates that it has spurred in the past, argues that English law is right on this question, but needs to understand more cogently why. This, in turn, requires an examination of the interests protected by the cause of action. It is only if we accept that it is, and is solely, reputation founded in character that the defence of veritas will be secured.

ISBN: 1748121X

This paper examines, from a historical and comparative perspective, the role of truth in the South African law of defamation. In order to understand to what extent the law of South Africa might represent a mixture of civilian and common-law thinking, it first sets out the viewpoint of, on the one hand, Roman and Roman-Dutch law and, on the other hand, English law. Against this background, the dominant position of South African law appears avowedly civilian, a stand explained by the fact that the South African law of defamation really is a law of verbal insults, as in Rome, rather than a law of injuries to deserved reputation, as in England. However, an interesting dissident strand in favour of the sufficiency of truth can be seen to exist in the background, which is explored. This dissenting strand is certainly English in substance, but this does not entail that it has English roots.

Cette contribution aborde la question de l’enseignement et de la recherche en droit français au Royaume-Uni sous un angle décalé, replaçant le droit français dans le contexte historico-géographique plus large de la tradition romaniste à laquelle il appartient. L’Angleterre montre à cet égard une aptitude à dialoguer avec l’autre tradition juridique européenne qui n’a – on ne peut que le regretter – pas d’équivalent en France. Nous utilisons l’exemple du droit de l’enrichissement sans cause (« law of unjust enrichment » ou « law of restitution ») pour illustrer le caractère profondément créatif de ce dialogue. Avec Peter Birks (1983 : An Introduction to the Law of Restitution ; 2003 : Unjust Enrichment), on voit ainsi apparaître et se développer une discipline nouvelle crée par la surimposition d’une structure romaniste, dérivée de Gaius et Grotius, sur les vieux matériaux tant de la common law au sens strict que de l’equity, qui formaient jusque là une jungle remédielle sans cohérence analytique (actions de quantum meruit ou quantum valebat, quasi-contrats, constructive ou resulting trusts, etc). Le dialogue avec la tradition romaniste moderne y est aussi constant (voir la révolution copernicienne de Birks en 2003, inspirée par Sonja Meier du Max-Planck-Institut et alignant le droit anglais sur le droit allemand).

Par contraste, le droit français de l’enrichissement sans cause apparaît coupé de ces courants doctrinaux paneuropéens que l’on peut comparer à un nouveau ius commune. L’une des raisons principales en est certainement l’ignorance du droit romain qui, joint à un droit comparé qui ne dépasse que rarement le stade décoratif, coupe la doctrine française à la fois de ses racines et de ses voisins. La cohérence du droit national en est affectée (exemple de la condition d’appauvrissement du demandeur en sus de l’enrichissement du défendeur, qui est considérée comme une évidence alors qu’elle n’est exigée ni en droit allemand ni en droit anglais). A l’inverse, les bons juristes britanniques ont en général à la fois une connaissance substantielle du droit romain (obligatoire à Oxford et Cambridge ; Birks était professeur de droit romain avant d’être un common-law lawyer) et aussi une conscience aiguë de la dimension historique de leur droit. L’exemple de l’enseignement et de la recherche anglaise en droit de l’enrichissement sans cause nous donne ainsi des indications précieuses sur la manière d’orienter notre enseignement et notre recherche en France.

The view that the wrong of defamation protects the interest in reputation, and nothing but that interest, is ordinarily taken for granted in modern English law. It is, however, incorrect. This paper gives four examples of ways in which the English law of defamation has strayed into the protection of other interests, in particular privacy, self-worth and wealth. They are: the supplementary tests of defamatoriness (the ridicule test and the ‘shun and avoid’ test); s. 8(5) of the Rehabilitation of Offenders Act 1974; the rule that slanders are not ordinarily actionable without proof of ‘special damage’; and, finally, the compensation of losses consequential upon the injury to reputation. It is argued that these are all unwarranted and ought to be reformed.

ISBN: 10393285

Contrary to English law which (despite procedural divisions) has only ever had one class of civil wrongs, the civilian tradition, starting with Gaius, has typically split its law of wrongs into two, one group being called “delicts” and the other “quasi-delicts”. Yet this division remains mysterious: it is clear neither where the line was drawn nor why a separation was made along this line. This paper provides the sketch of an answer to both questions, looking at Roman law and its principal heir French law. It also attempts to examines what the common lawyer might learn of relevance to his own tradition from an observation of the civilian experience of dividing wrongs.

Abstract: Is it necessary to codify the private law of contracts in Europe? The question, the author argues, breaks down into three sub-questions. First, is such a codification conceivable, that is, does it make sense to claim to envision it? Next, is it desirable? And finally, is it realizable? The demand for codification would imply that one should answer these three questions affirmatively. According to the author this is not the case, however, because even if it is conceivable to create a legal instrument common to countries with distinct legal traditions and epistemologies (notably the civil and the common law), the arguments in favour of such a project are outweighed by those against it, notably issues of costs and uselessness. Above all, the idea of "Europeanizing" the law of contracts betrays a certain lack of understanding of the nature of law. In effect, not only is it impossible to set out in a uniform manner the same norm in several different systems, especially if they use different languages, but also the interior dependence of each of these systems of contract law on other branches of law and on national legal science makes the creation of a uniform contract law in Europe radically impossible.

ISBN: 0024-9041

Le Code civil contient une faille structurelle : son chapitre 4.3.2 (« des délits et des quasi-délits ») est censé, par construction, se rapporter à la responsabilité fondée sur un délit ou un quasi-délit, c’est-à-dire sur un acte fautif. Pourtant, ce chapitre contient des faits générateurs de responsabilité non-coupables : le contenu ne correspond donc pas au contenant. La cause, c’est que le droit français moderne a réécrit la dichotomie romaine entre obligations ex delicto et quasi ex delicto, lui faisant perdre son caractère exhaustif. Une conséquence en est que la notion de faute a été soumise à une force centrifuge considérable, tendant à la vider de sa condition historique de culpa.

ISBN: 0397-9873

Abstract: English judge-made law, like Roman law in its own time, is divided into strict law and equity. Today, this division can be described as hysteretic, insofar as it is based on now by-gone causes. The issue is therefore bound to arise, 130 years after their procedural fusion, of the substantive fusion (or integration) between these two bodies of law. The present shorter article follows up on Professor Worthington’s recent Equity, in which the writer advocated this option and, for the first time, attempted to flesh it out in a methodical fashion. It sets out to examine the taxonomical argument for fusion. Its gist is that the concept of equity, being defined procedurally rather than substantively, is an intruder within the modern English legal landscape, which is dominated by substance-based categories. This means that the only option for equity is to disappear as an autonomous legal category.

English judge-made law, like Roman law in its own time, is divided into strict law and equity. Today, this division can be described as hysteretic, insofar as it is based on now by-gone causes. The issue is therefore bound to arise, 130 years after their procedural fusion, of the substantive fusion (or integration) between these two bodies of law. The present shorter article follows up on Professor Worthington’s recent Equity, in which the writer advocated this option and, for the first time, attempted to flesh it out in a methodical fashion. It sets out to examine the taxonomical argument for fusion. Its gist is that the concept of equity, being defined procedurally rather than substantively, is an intruder within the modern English legal landscape, which is dominated by substance-based categories. This means that the only option for equity is to disappear as an autonomous legal category.

ISBN: 0556-7963

The four incumbents of the Oxford Regius Chair of Civil Law in the second half of the 20th century share one remarkable feature, namely, that they all are related to Otto Lenel, the German initiator of modern Roman law studies. The connection is twofold, both personal (through teacher-pupil relationships) and intellectual, in that they have received and developed Lenel’s project. This project can be described as the restoration of the primacy of procedure in Roman law, as well as the putting back in order of the Roman law library. Professors Beatson and Zimmermann’s recent Jurists Uprooted helped to unveil this connection. The present shorter article aims at expounding it in a more systematic way by exploring the background to this relationship, as well as the link between each of the incumbents (H. F. Jolowicz, David Daube, Tony Honoré, Peter Birks) and Otto Lenel.

ISBN: 0035-3280

One principal difference between the legal traditions of Scotland and England is that, while Scots lawyers have always been committed to a rational structure of the law, English lawyers have generally shown themselves indifferent to legal taxonomy. Nevertheless, Oxford’s Professor Birks has recently edited a treatise on English private law which in effect revives the long-standing Roman institutional scheme, thus ‘civilianising’ the common law and bringing it a step closer to Scots law, which has been relying on this map for centuries. This article sets out to evaluate the merits of his enterprise. To that effect, it primarily examines the triangular relationship between the taxonomies of Roman, English and Scots law.

ISBN: 0022-6785

The meaning of the Gaian-Justinianic division of obligations arising from unlawful events into obligationes ex delicto and quasi ex delicto has long been a puzzle for Romanists. The strict liability theory, which understands “quasi-delicts” as examples of situational wrongs, defined independently of fault, was first aired in the 1940s but has never gained widespread support. The case of the iudex qui litem suam facit was regarded as a stumbling block for the theory. The present article aims to make a new and systematic case for strict liability as the basis of the quasi-delictal category and argues that, in the light of archaeological discoveries which have overhauled our understanding of the judge’s liability, we can now have a coherent picture of Roman quasi-delictal liability as liability even without fault.

ISBN: 0144-0365

The present article concerns itself with the relationship between defamation and negligence in the protection of the interest in reputation. The bijection between defamation and reputation is typically thought of as perfect: defamation only protects reputation, while reputation is only protected by defamation. This article shows, however, that neither limb of the proposition is true; furthermore, there is no principled ground why they should be. In particular, there is no reason why the tort of negligence could not prima facie extend the scope of its protection to reputation. It might seem that the fact that negligence, as a tort, requires by construction culpa, whereas defamation appears to rely on either more or less than that as a standard of liability, would prove an insuperable stumbling-block in the way of this suggestion. The hurdle, however, is not nearly as formidable as it might appear at first, because, as this article documents, negligence has for more than a century been acting as a magnet on the law of defamation, surreptitiously bringing its standard of liability increasingly close to negligence-culpa.

ISBN: 0143-6503

The present paper concerns itself with the relationship between defamation and negligence in the protection of the interest in reputation. The bijection between defamation and reputation is typically thought of as perfect: defamation only protects reputation, while reputation is only protected by defamation. This paper shows, however, that neither limb of the proposition is true; furthermore, there is no principled ground why they should be. In particular, there is no reason why the tort of negligence could not prima facie extend the scope of its protection to reputation. It might seem that the fact that negligence, as a tort, requires by construction culpa, whereas defamation appears to rely on either more or less than that as a standard of liability, would prove an insuperable stumbling-block in the way of this suggestion. The hurdle, however, is not nearly as formidable as it might appear at first, because, as this paper documents, negligence has for more than a century been acting as a magnet on the law of defamation, surreptitiously bringing its standard of liability increasingly close to negligence-culpa.

The common law, despite procedural divisions, has only ever had one class of civil wrongs. The civilians, by contrast, have typically split their law of wrongs in two, one group being called ‘delicts’ and the other ‘quasi-delicts’. Yet this division, which originated in Roman law, remains mysterious: it is clear neither where the line was drawn nor why a separation was made along this line.

This book does two things. In the first two parts, it investigates the origins of the division and its development in a modern civilian jurisdiction, France. What is argued for is that the Roman dichotomy was originally one between fault (culpa)-based and situational liability, which was prompted by a historical contraction of the Roman concept of a wrong (delictum). French law, building on medieval interpretations of the division, redrew the line one level higher, between deliberate and negligent wrongdoing. By doing so, it involved itself in severe taxonomical difficulties, which the book explores.

The third part of the work concerns itself with the significance of the civilian division of wrongs according to degrees of blameworthiness (dolus, culpa, casus) for the common law. A rather provocative thesis is developed, in effect, that there is a strong case for the adoption of a similar trichotomy as the first-level division of the English law of civil wrongs. From its formulary age, English law has inherited an unstable taxonomy where wrongs intersect. The existence of these mismatched categories continues to cause significant difficulties, which a realignment of causes of action along the above lines would allow to sort out.

ISBN: 9780199562794

This article examines the rationale of the Justinianic division of wrongs into delicts and “quasi-delicts”. Taking as its starting point the assumption that the distinction corresponded to that between fault (culpa)-based and situational liability, it hypothesizes that the quasi-delictal appendix arose after the time of Gaius’ Institutes from a contraction of the Roman concept of a civil wrong (delictum): its scope would have narrowed from an unlawful liability-creating act to a blameworthy such act, thereby rejecting outside of the delictal class proper instances of liability regardless of fault.

ISBN: 1943-6483