Contumeliaandthesouthafrican Law Ofdefamation

6

ContumeliaandtheSouthAfrican Law ofDefamation

HELEN SCOTT

1. Animus IniuriandiinSouthAfricanLaw

The case of Le Roux v Dey1 arose from a schoolboy prank. The three defendants (all between the ages of 15 and 17) had between them manufactured anddisseminated an image of their school principal and vice-principal naked and locked in an intimate embrace. It appeared that the first defendant had simply pasted imagesofhisteachers’facesovertheheadsofthetwopeopledepictedintheoriginalphotograph.Itwassufficientlycrudelyexecutedtobeanobviousfake.

The boys having been found out and punished, the school principal was prepared to dismiss the episode. Not so Dr Dey, the vice principal. He pursued the matter in the courts by means of an action that in South African law is still called the actio iniuriarum. More specifically, he claimed sentimental damages for the infringement of both his dignity (dignitas) and his reputation (fama). The High Court found for the plaintiff on both counts, awarding a composite amount of R45,000 (about £4,000) as damages with costs on the magistrate’s court scale. Both sides appealed to the Supreme Court of Appeal, the boys against the judgment and Dr Dey against the damages award. The boys’ appeal was dismissed, while the cross-appeal was upheld. On appeal to the Constitutional Court, the orders granted in the High Court and Supreme Court of Appeal were set aside and the defendants ordered, jointly and severally, to pay the plaintiff R25,000 (about £2,000) as compensation and to tender an unconditional apology to the plaintiff for the injury they caused him.2

Thecaseraisedanumberofimportantissues,bothconstitutionalandotherwise: theseincludedwhethertheimagewasdefamatory,andwhetherinfringementsof

1LeRouxandothersvDey2010(4)SA210(SCA);LeRouxandothersvDey(FreedomofExpression InstituteandRestorativeJusticeCentreasAmiciCuriae)2011(3)SA274(CC).

2Thedefendantswereorderedpaytheplaintiff’scostsintheHighCourtbutnoorderwasmadeas to costs in the Constitutional Court or in the Supreme Court ofAppeal.

dignity and reputation were separate wrongs for the purposes of the actio iniuriarum; in other words, whether the same act could give rise to two actions. However,thisessayaddressesonlyonefurtherissue,namely,theprecisecharacter oftherequirementofanimusiniuriandi,intentiontoinjure.Assumingtheimageto bedefamatory,thethreeschoolboydefendantsattemptedtorebutthepresumption of animus iniuriandigenerated by its publication by arguing that they had not knownthattheirconductwasunlawful–indeed,thattheydidnotknowthatthere was such a thing as defamation – and that they had intended the publication as a joke. These defences were rejected by a majority of both the Supreme Court of AppealandtheConstitutionalCourt.GivingthejudgmentoftheSCA,HarmsDP heldasfollows:

[27]Toassessthedefenceoflackofanimusinjuriandiitisnecessaryonceagaintovisit the issue as to its meaning and application in the context of the actio injuriarumin its differentforms...[A]nimusinjuriandimeanstheintentiontoinjure.

. . .

[29]TheContinentalPandectistsofthe19thcenturyanalysedtheconceptofdolusand addedanotherelementtotheintentiontoinjure,namelyconsciousnessofthewrongfulnessoftheact(colouredintentor‘wederregtelikheidsbewussyn’).Inspiteofmyhigh regardforthemithastobeconcededthatbysystematisingtheRoman-lawconcepts theydidnotnecessarilystatetheRoman-Dutchlaw.Thismeansthatanadherenceto therootsofourlawdoesnotnecessarilyrequireanadoptionofPandectisttheories.

. . .

[37]ApurelyPandectistapproachdoesgetoneintoabind...Itappearstometobe incongruousthatadefendantwho,forexample,cannotestablishtruthandpublicbenefittojustifydefamation,canneverthelessescapeliabilitybyrelyingonabeliefineither thetruthorpublicbenefit.

. . .

[39] . . . I therefore conclude, especially in view of precedent and the constitutional emphasis on the protection of personality rights, that the animus injuriandirequirementgenerallydoesnotrequireconsciousnessofwrongfulness(wederregtelikheidsbewussyn).

[40] In addition . . . I do not believe that jest excludes the intention to injure. It goes to motive and . . . if a joke is degrading the defendant’s motive does not matter.3

Speaking for the majority in the Constitutional Court, Brand J upheld Harms DP’s finding regarding the defendants’ argument that they had intended the publication as a joke:

3Footnotesomitted.cfalsopara10:‘Itappearstomethatifapublicationisobjectivelyandinthe circumstancesinjestitmaynotbedefamatory.Butthereisaclearline.Ajokeattheexpenseofsome-one–makingsomeonethebuttofadegradingjoke–islikelytobeinterpretedasdefamatory.Ajoke atwhichthesubjectcanlaughwillusuallybeinoffensive.’

[131]...[E]stablishedprinciplesofourlawdictatethatmotivetoraisealaughandnot to injure, in itself, would not exclude animus iniuriandi. This is so because in our law motive does not necessarily correlate with intent. A defendant who foresaw the possibility that his attempt at humour might be defamatory of the plaintiff, but nonetheless proceeds with the attempt, will have animus iniuriandior intent in the form of doluseventualis.4

Regarding the defendants’ argument that they did not know that their conduct was unlawful,

[134]Imustadmitthat,inthecircumstancesIfoundtheirrelianceonthisbasisrather peculiar.Lackofknowledgeofwrongfulnessisgenerallyadvancedinthecontextofa subjectivebeliefinsomegroundofjustificationwhichisthenfound,objectively,notto exist.So,forexample,itwouldbecontendedbyadefendantthatheorshethoughtthe defamatorystatementwasprivileged,orthatthedefamatorystatementwastrueandits publicationforthepublicbenefit,orthattheplaintiffhadconsentedtopublication.But thiswasnotthedefenceraisedbytheapplicants.Nordidtheycontendthattheywere unaccountableorculpaeincapaxbecausetheiremotionalandintellectualdevelopment hadnotreachedthestagethatenabledthemtodistinguishbetweenrightandwrong andtoactaccordingly.Theysimplydeniedthattheywereawarethatwhattheywere doingwaswrong.

. . .

[137] I do not believe that knowledge of wrongfulness requires familiarity with the existence of a particular delict . . . Ultimately, it must be borne in mind that the appli- cants bore the onus to establish their defence of absence of knowledge ofwrongfulness on a preponderance of probabilities. In my view, they simply failed to rebut this onus. It was therefore not necessary for the Supreme Court of Appeal to embark upon the enquiryastowhetherourlawshouldstillrequireknowledgeofwrongfulnessaspartof animusiniuriandi.NordoIfinditnecessaryforthisCourttodoso.5

ThusBrandJdistancedhimselffromthefindingofHarmsDPthat,‘theanimus injuriandirequirement generally does not require consciousness of wrongfulness’.Ontheotherhand,heupheldhisfindingthatjestgoesonlytomotiveandis thusincapableofexcludinganimusiniuriandi.

Theseconclusionsrestonhundredsofyearsoflegaldevelopment.IntheSouth Africancontext,themeaningofanimusiniuriandiintheoriginalRomansources and in the later civilian tradition has been the subject of contention for at least a century.6 It may well be that a concept of animus iniuriandiwhich incorporates

4 cfalso para 110: ‘The conceptofa jokeorjest is usually cast in the roleofa defenceexcludinganimus iniuriandi, an instance in which the defendant bears the onus. In this case the applicants also sought to assign it to that role. I will come to that. But the concept of a joke may also come in at the earlierstageofdeterminingwhetherastatementisdefamatory.Iftheconclusionisthatthereasonable observer would understand the statement as good clean fun which simply caused amusement, it will notberegardedasdefamatory’.

5 Footnotes omitted.

6egMeliusDeVilliers,TheRomanandRoman-DutchLawofInjuries(1899);‘MaliceintheEnglish andRomanLawofDefamation’(1901)17LawQuarterlyReview288;RGMcKerron,‘FactandFictionin the LawofDefamation’(1931) 48 SouthAfrican Law Journal 154; MeliusDe Villiers, ‘Animus

consciousness of wrongfulness is incompatible with the analytical structure ofthe modern South African law of defamation: that a defamation regime that recognises(asSouthAfricanlawhasdonesincethenineteenthcentury)thestereotyped defencesofEnglishlaw–truth(inthepublicinterest),faircommentandprivilege

– and which conceives of these defences (as South African law now does) as defences to wrongfulness, cannot also accommodate a fault regime that allows liabilitytobedefeatedbyproofoftheabsenceofwrongfulintention.7Yetitisnot the purpose of this paper to rehearse or contribute to that important debate. All that it seeks to do is to consider the propositions set out above: that advanced by Harms DP, that consciousness of wrongfulness is a Pandectist invention, and that ‘adherencetotherootsofourlaw’doesnotthereforerequirethatwerecognise suchcolouredintentasanelementofliabilityunderthemodernactioiniuriarum;8 and that accepted by both Harms DP and Brand J, that jest goes only to motive andisthusincapableofexcludinganimusiniuriandi.

InthisrespectReinhardZimmermann’swarningregardingtheroleofsubjectiveconsiderationsinclassicalRomanlawissalutory:

Objectiveandsubjectiveingredientswereinextricablyinterwovenwithintheconceptof iniuria,andtherelativeweightattachedtoeachdepended,furthermore,onthetypeof injuryinquestion.Thismakesitimpossibletogeneralize.Themostonecanprobably sayisthathere,asinmanyotherinstances,theRomanlawyersdidnotthinkintermsof specific,isolatedrequirementsforliabilitythathadtobesatisfied,buttendedtolookat thetypicalityofthesituation.9

Injuriandi:AnEssentialElementin Defamation’(1931) 48 SouthAfricanLawJournal308; RGMcKerron,TheLawofDelictsinSouthAfrica(1933);TWPrice,‘AnimusInjuriandiinDefamation’(1949)66SouthAfricanLawJournal4;TWPrice,‘TheBasisoftheSouthAfricanLawofDefamation’ [1960] ActaJuridica254. Much of this literature was cited by De Villiers AJ (not Melius) in Maisel v Van Naeren[1960] 4 All SA 447 (C), in which a mistaken belief in the existence of a privilege on the part of the defendant was taken to exclude animus iniurandiand thus liability. For a more recent view seeJNeethlingandJMPotgieter,Neethling-Potgieter-Visser:LawofDelict,6thedn(Durban,LexisNexis, 2010) 128–30. Regarding the fault standard to be applied to the press see Suid-AfrikaanseUitsaaikorporasie v O’Malley 1977 (3) SA 394 (A); National Media Ltd v Bogoshi1998 (4) SA 1196 (SCA); Khumalo v Holomisa2002 (5) SA 401 (CC); NM and Others v Smith and Others (Freedom of ExpressionInstituteasAmicusCuriae)2007(5)SA250(CC).

7 It is clear that these defences were originally (ie in the nineteenth and early twentieth centuries) conceived of as defences to animus iniuriandi: see egCrawford v Albu1917 AD 102 (dealing with fair comment). For the modern South African position regarding the nature of these defences, see egSuid-AfrikaanseUitsaaikorporasievO’Malley1977(3)SA394(A);PakendorfvDeFlamingh1982(3)SA146 (A); Khumalo v Holomisa2002 (5) SA 401 (CC) and Le Roux v Dey2011 (3) SA 274 (CC) itself. For a masterfulaccountofthisparadigmshiftanditsdoctrinalimplicationsseeFagan,thisvolume,ch9.

8As authorityforthispropositionHarmsDPcitedRMidgleyandJCvanderWalt‘Delict’inThe LawofSouthAfrica8(1),2ndedn(Durban,LexisNexis,2005)para105fn3:‘Althoughthereareindications that Roman and Roman-Dutch law acknowledged the relevance of consciousness of the wrongfulness of the act as an element of dolus(see, in particular, D 47 10 3 2–4; Voet47 10 20; De Villiers Injuries28–29,193–99),theconstituentelementsoftheconceptdoluswereonlyformulatedduringthe nineteenthcenturybythePandectists.’

9 Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Cape Town, Juta, 1990) 1061. This is essentially the view of Raber. See Fritz Raber, GrundlagenKlassischerInjurienansprüche(Wien, Böhlaus, 1969) ch 3, summarised on p 174.

Indeed, it is anachronistic to speak of a requirement of animus iniuriandiin Roman law: certainly the term itself is not used in Digest 47.10.10 Nevertheless,it willbearguedbelowthattheRomandelictofiniuriawasinfactoverwhelmingly subjective in focus. Not only was it extremely sensitive to shades of intent on the partofthedefendant(whatthejudgesinLeRouxvDeycalledmotive);bytheend oftheclassicalperioditwasapproachingthepositionthatthedefendant’sinjurious or contemptuous intent – the fact that he had acted in order to perpetrate an iniuriaoroutofcontumelia–wasdeterminativeofliability.11

1. Roman Iniuria:TheEdictalDelict

The relationship between the iniuria of the Twelve Tables and that of the praetorian General Edict de iniuriisaestumandisis obscure.12 Equally, the meaning of iniuria in each context is unclear. According to Table 1.13–15, there was to be talioincasesofmembrumruptum(themaimingofalimborrenderinguselessof somepartofthebody),fixedpenaltiesof300or150assesfortheosfractum(broken bone) of a free person or a slave, and a penalty of 25 assesfor ‘any other iniuria’.13 Assuming that this provision did contemplate a particular species of wrongdoing called iniuria, it is generally thought to have referred to minor personal injuries such as slapping, as distinct from the more serious assaults set out in the two preceding provisions.14 On the other hand, the text of the GeneralEdict deiniuriisaestumandis,enactedaroundtheturnofthesecondcenturyBCE,read asfollows:

He who brings the action for iniuria . . . let him specify for certain what iniuria he has suffered and place an upper limit on the damages (vademonium) set for the case.15

10Theclosestwecomeiscorrigendianimoaut...emendandi(usedbyUlpianinD47.10.15.38)and animuminiuriaefaciendaeinD47.10.26.cfFritzSchulz,ClassicalRomanLaw(Oxford,Clarendon Press,1951)597.

11cfIbbetson,thisvolume,ch2,textafterncue41:‘Itshouldbestressedtoothatthedefendant’sintentionality lay right at the heart of liability; it was not simply a rule, which might have been different,thatthiswasthementalstatethatitwasnecessarytoprove.Itwasintheverynatureofcontumeliathat the wrongdoer was deliberately acting without taking into account the interests of the victim. We shouldnotexpecttofindarulerequiringanimusiniurandidistinctfromthefactofiniuria.’

12Inparticular,PeterBirkshassuggestedthattheclassicaldelicthaditsorigininthepraetor’sedict ratherthantheTwelveTables:‘TheEarlyHistoryofiniuria’(1969)37TijdschriftvoorRechtsgeschiedenis163;PBirks‘LuciusVeratiusandthelexAebutia’inWAJWatson(ed),DaubeNoster:Essaysin LegalHistoryforDavidDaube(Edinburgh,ScottishAcademicPress,1974)39.SeegenerallyDescheemaeker andScott,thisvolume,ch1,sectionII.

13 Tab 1.13–15; Michael Crawford, Roman Statutes (2 vols, London, University of London, Institute of Classical Studies, 1996) vol 2, pp 604–8. cfIbbetson, this volume, ch 2, section I and Du Plessis, this volume, ch 7, text to nn5–6.

14 eg Zimmermann (n 9) 1051.

15Collatio2.6.1.(Paullibrosing.[deiniuriis]subtituloquemadmoduminiuriarumagatur).SeeOtto Lenel, Das Edictumperpetuum, 3rd edn (Leipzig, Tauchnitz, 1927)398.

TheEdictdidnotspecifyanyactionableconductatall,referringsimplytoiniuria and leaving it to the claimant to particularise the harm suffered. The dominant viewappearstobethatitcoveredonlyminorpersonalinjuriessuchasslapping– ie the iniuriaeof Table 1.1516 – but it may have comprised also more serious assaultsfromthestart–themembrumruptumandosfractumofTables1.13and

1.14.17 On either view, the only developments brought about by the Edict were procedural ones: the fixed penalties of the Twelve Tables were abandoned in favourofdamagesassessedatthediscretionoftheiudexorrecuperatores.18Thusit appearsthatliabilityundertheEdictwasoriginallystrict,asithadbeenunderthe TwelveTablesthemselves.Proofthatthedefendanthadsmashedalimb,brokena boneetcgaverisetoprimafacieliability.

Unlike the General Edict, the so-called special edicts enacted during thecourse of the second and first centuries BCE undoubtedly imposed liability in new, previously unrecognised situations. Yet the conduct which they identified appeared to share some of the central characteristics of iniuria, namely a latent insulting character.ThefirstofthesewastheedictDeconvicio,creatingadelictofconvicium,usuallytranslatedasclamour.Ulpiangivestheoriginalwordingofthisedict inD47.10.15.2(57Adedictum):19

One who is said to have raised a clamour [convicium] at someone contrary to good morals[contrabonosmores]oronethroughwhoseeffortssuchaclamourisraisedcontrarytogoodmorals,againsthimIwillgiveanaction[iudiciumdabo].

Thenatureofconvicium–thesituationenvisagedintheedictappearstobethatof acrowdgatheringtogethertodenouncesomeone–andtheconditionsofliability under this edict were discussed in detail in the Introduction and will not be repeated here.20 However, it is important to note that the criterion of boni mores

–prevailingstandards–usedbythepraetortodistinguishpublicdemonstrations which were socially permissible and therefore lawful from those which were not, whileflexible,remainedwhollyobjective.Theintentionorpurposeofthedefendant was not specified. Deliberate conduct – which would invariably have been present–wasapparentlysufficient.

16 David Daube, ‘Nocereand noxa’ (1939) 7 Cambridge Law Journal 23, 45–47; ‘Ne quid infamandicausa fiat: The Roman Law of Defamation’ in David Cohen and Dieter Simon (eds), David Daube: Collected Studies in Roman Law (Frankfurt, Klostermann, 1991) 465, 467; Zimmermann (n 9)1052.

17 See egthe authorslistedbyBirksin ‘The EarlyHistoryofiniuria’ (1969) 37 TijdschriftvoorRechtsgeschiedenis163,194.AthirdviewisthatofBirks,thattheEdictumgeneraleoriginallycomprised allunlawfulconduct.Seeeg‘InfamandicausafactainDisguise’[1976]ActaJuridica83;‘Harassmentand Hubris: The Right toan Equality ofRespect’(1997) 32 IrishJurist1, 12 fn35. The accountofDaubein‘Nequidinfamandicausafiat’accordingtowhichthespecialedictscreatednewdelictsoutside an originally narrow Edictumgeneraleis preferredhere.

18 These were judges with special powers who sat in cases of particular importance: see Birks, ‘Early History’ (n 17) 197–200; JM Kelly, Studies in the Civil Judicature of the Roman Republic (Oxford, Clarendon Press, 1976) 40–70.

19NotBook77:OttoLenel,PalingenesiaIurisCivilis(2vols,Leipzig,BernhardTauchnitz,1889) vol2,p772.

20 Descheemaeker and Scott, this volume, ch 1, section II.A.

The second of the special edicts appeared under the rubric De adtemptatapudicitia:literallytranslatedthismeantsomethinglike‘attacksonchastity’or sexual harassment. Although the text of the edict is nowhere recorded, it is paraphrased by Ulpian asfollows:

Ifsomeoneisallegedtohaveabductedthecompanionofamatron(materfamilias)ora boy or girl, or if someone has called out to them or followed them around contrary to good morals [contra bonosmores].21

Again,thefactualcomplexescomprisedwithinthisedictarediscussedindetailin the Introduction.22 In short, the edict addressed both behaviour that was prima facieiniuria(abduction)andbehaviourthatwasiniuriaonlywherefoundtobein breachofprevailingstandards,contrabonosmores(accostingorfollowing);the firstsub-delictcorrespondedtotheassaultscomprisedwithintheGeneralEdict, thelattertoconvicium.

Similar again was the last of the special edicts to be discussed by Ulpian in his edictalcommentary:thiswasDeiniuriisquaeservisfiunt,23whichcreatedanew wrongofservialieniverberatio,beatinganother’sslave.24AccordingtoUlpian,the wordingofthisedictwasasfollows:

Whereamanshallbesaidtohavebeatenanother’sslavecontrarytogoodmorals[contrabonosmores]ortohavesubmittedhimtotorturewithouttheowner’sconsent,Iwill giveanaction.Equally,ifitbesaidthatsomethingelsebedone,Iwill,havingheardthe circumstances[causacognita],giveanaction.25

Whereastorturinganother’sslaveappearstohavebeenprimafacieiniuria,beatinghimgaverisetoliabilityonlyiffoundtobecontrabonosmores.Asinthecase ofthoseearlieredicts,liabilitywasobjectivelybutflexiblydetermined.

Yet the third of the special edicts to be introduced by the praetor relied on an entirely different technique for determining liability: this was the edict ne quid infamandi causa fiat.26 According to Ulpian, apparently quoting verbatim (ait praetor) the edict ran,

Let nothing be done to bring infamiaupon another. If anyone does anything to the contrary I will look into it according to the nature of the issue.27

Unlike in the case of the other special edicts, no particular wrongful conduct was envisaged: the question of which facts were capable of substantiating this edict was left entirely open.28 Instead, liability under the edict turned exclusively onthe

21 Lenel, Das Edictum(n 15) 400.

22 Descheemaeker and Scott, this volume, ch 1, section II.A.

23Likethefirstthreespecialedicts,serviverberatioisconsideredindetailbyUlpianinthelongextract fromhisedictalcommentarypreservedinD47.10.15.SeeD47.10.15.34–49andD47.10.17pr2.

24 For details see Descheemaeker and Scott, this volume, ch 1, section II.A.

25 Lenel, Das Edictum(n 15) 401.

26 For details see Descheemaeker and Scott, this volume, ch 1, section II.A.

27 Lenel, Das Edictum(n 15) 401.

28 eg D 47.10.15.27.

subjective intention of the wrongdoer.29 As long as the wrongdoer’s purpose was to shame his victim, his conduct – whatever it was – was deemed to be actionable. This technique for determining unlawfulness, while also extremely flexible, was of course quite distinct from that applied in the case of convicium, adtemptatapudicitiaand serviverberatio.30 Indeed, it was astonishingly sophisticated – even revolutionary – in the context of a legal system which seems otherwise to have dealt exclusively in objectively framed forms of action.31

III.Roman Iniuria:HarassmentandHubris

What emerges clearly from this brief summary of the development of iniuria is thatitbeganlifeasaparticularisedorfragmenteddelict.Indeed,duringitsedictal phase it does not seem that there was any unitary iniuria delict at all.32 It follows that there could be no standardised approach to intention during this period. However, by the first century CE the General Edict and special edicts had been welded together into a single procedural unity: all wrongs falling within their scopewerenowactionableasiniuriaeundertheactioiniuriarum.33Moreover,this procedural unity was matched by a substantive one: the mature delict of iniuria wasorganisedaroundtheprincipleofcontumelia.34

What did contumeliamean?35 There appears to have been a strong connection with the Greek concept of hubris, as indicated by the fact that Justinian in his Institutes treats the two words as virtual synonyms.36 This state of mind – the GreekhubrisorRomancontumelia,bestrenderedinEnglishas‘contempt’37–is keytounderstandingthenatureoftheclassicaliniuriadelict.Itrefersto,‘akind of arrogance or pride, an over-confident exaltation of the self, manifested in violence or other misbehaviour towards others’.38 In fact, the word contumeliareferred not only to a particular attitude of mind but also to the conduct flowing from it: in this sense it is best translated as ‘harassment’.39 Thus it combines the attitudeofmindofonewhoharasseswiththeactsthatderivefromthatmental

29 Daube,‘Nequidinfamandicausafiat’(n16)469.

30 ‘[S]omeshadesofintentcouldinthemselvesturnlawfulconductunlawful.’Birks,‘Harassment andHubris’(n17)13.

31 Daube,‘Nequidinfamandicausafiat’(n16)469.

32 cfn 17 above.

33 For further details see Descheemaeker and Scott, this volume, ch 1, section II.

34 ibid.

35 cfDescheemaeker and Scott, this volume, ch 1, section II.A.

36 Re the meaning of hubris in Greek law, see eg the account of a Greek criminal trial reported by DemosthenesinAgainstKonon.ReLabeo’sroleinimportingthisidea,seeIbbetson,thisvolume,ch2, text to n 38 and the works citedthere.

37 Birks,‘HarassmentandHubris’(n17)8.

38 ibid, relying on the OED.

39 Birks,‘HarassmentandHubris’(n17)8–9.

attitude.40Itwasthisflexibilitythatmadecontumeliasuchasuitableunifyingidea. The Roman jurists saw it as capable of integrating the many different manifestations of the maturedelict.41

ForBirks,then,thedelictiniuria,which‘byspecializationofthesenseofthat word,[thejurists]ineffectcalled“contempt”’,wasinfact‘contemptuousharassmentofanother,calculatedtocausedistressinthenatureofangerandhumiliation

...butviolating,notaninterestinemotionalcalm,butthevictim’srighttohisor herpropershareofrespect’.42YetBirks’definitionofclassicaliniuriaascontumeliais subject to several ‘important riders’, one of which pertains to the interaction between hubris/contumeliaand objective unlawfulness. According to Birks, in practicehubrisplayed‘asurprisinglyunobtrusiverole’.43Itwasaprinciple,nota requirement: the big idea without which this synthetic tort stitched together from thefabricoftheRepublicedictswouldhavefallenapart.44Ratherthanrequiringto bedistinctlyprovedineachcase,itwasaninferencedrawnfromotherfacts.Thus ifAassaultedB–deliberatelyattackedhimwithanaxe–orraisedaclamour(con- vicium) against him or sexually harassed him, it did not need to be demonstrated that A had acted with a specifically contemptuous intention towards B. The mere fact that A had intentionally committed those acts of harassment showed his contempt for hisvictim.

That rider is itself qualified in Birks’ account. The inference of contemptuous intention generated by the intentional committing of prima facie or demonstrably injurious acts could be rebutted. Birks gives the famous example discussed by the jurist Julian in D 9.2.5.3 (Ulpian, 18, Ad edictum):

Ifateacherinthecourseofinstructionwoundsorkillsaslave,isheliableunderthelexAquiliaashavingdoneunlawfuldamage?Julianwritesthatamanwasheldliableunder the lexAquiliawho had put a pupil’s eye out in the course of instruction: much more thereforemustthesameviewbetakenifhekillshim.Nowheputsthefollowingcase:a shoemaker,hesays,whenaboywhowaslearningunderhim,afreebornfiliusfamilias, didratherbadlywhathegavehimtodo,struckathisneckwithalast,sothattheboy’s eyewasputout.AccordinglyJuliansaysthattheactioiniuriarumdoesnotlie,because he struck the blow not in order to perpetrate an iniuria [quia non faciendaeiniuriae causapercusserit]buttocorrectandinstruct:heinclinestothinkthattheactioexlocatolies, since only slight punishment is permitted to a teacher: but I have no doubt that an actioncanbebroughtonthelexAquilia.

A teacher, in the course of chastising a pupil, hits him too hard, causing serious harm. The shoemaker’s conduct (inflicting a serious injury) appears to beprima facieiniuria.Yettheteacherescapesliabilityundertheactioiniuriarum.Thereason:thehittingwasdonewithoutcontempt,inordertocorrectandteachthe

40 ibid and see further Descheemaeker and Scott, this volume, ch 1, section II.A

41 Birks,‘HarassmentandHubris’(n17)9.

42 ibid 11. cfDescheemaeker and Scott, this volume, ch 1, section II.B.

43 Birks,‘HarassmentandHubris’(n17)11.

44 ibid 13.

pupil [monendi et docendi causa].45 ‘The intention to admonish in the interests of instruction rebutted the inference of contempt normally drawn from intentional hitting.’46

Both propositions are indisputably correct. In particular, Birks is clearly right in arguing that a specific demonstration of contumeliaor contempt was oftennot required in order to found liability under the mature delict.47 Nevertheless, this paper seeks to qualify these propositions on two grounds. First, it appears that there were at least two techniques for driving forward the boundaries of the classical iniuria delict, which relied on wholly subjective considerations. In part this was due also to the survival of the Republican edicts in the classical delict: the specialedictnequid,liketheolderconviciumandadtemptatapudicitia,continued to play a prominent role in the context of the classical delict.48 As a result, in certain cases contemptuous (or strictly shaming) intention functioned as a sufficient condition for liability, provided of course that it issued in conduct of some kind. Indeed, there is evidence that the elements of conviciumwere influenced by the subjective focus of ne quid.49 Furthermore, it appears that contumeliaitself frequently drove the expansion of liability under the classical delict.50 In such cases thecontemptuouscharacterofthedefendant’sconductdidhavetobespecifically demonstrated. While contemptuous intention could often be inferred from the intentional commission of a contemptuous act, the matter was by no means always presented in this way. In fact, there are a number of cases preserved inDigest47.10wherethecontemptuousintentionofthedefendantappearsto