Requirements for Liability
(1) An Insulting Act
The name iniuria literally means something that is wrongful or which is done without right.[2483] It has, however, more specific meanings in different contexts.
We saw one of these in Chapter 22, in connection with the lex Aquilia.[2484] In the area we are concerned with here, the term can reasonably be translated as ‘insult’. Ulpian divides these into three categories. Every actionable insult, he says, pertains to one of three things: the body (corpus), a person’s dignity (dignitas') or a person’s reputation fama).[2485] An insult pertaining to the body would be a physical assault. As an example of an insult to dignity, Ulpian gives the act of leading off a lady’s companion, the point being that it was considered improper for a lady to appear in public unescorted. An insult pertained to reputation when it placed the victim in disrepute. Ulpian’s example is the making of an attempt on a woman’s chasÂtity. This might be done either by what would nowadays be called stalking or by directly propositioning the victim.[2486]Ulpian’s examples of both insult to dignity and disrepute draw attention to a difficulty with understanding iniuria. This difficulty is that the understanding of words and acts is to a very great extent culturally dependent. There is nowadays of course no stigma in a woman being unescorted in public. Equally, behaviour might still be considered offensive but for different reasons. To us, stalking is objectionable primarily because of the fear and alarm it causes the victim. To the Romans, it was objectionable primarily because it was harmful to the victim’s reputation, as implying that the victim might be receptive to the perpetrator’s advances. For this reason, to act in this way towards a woman who was dressed as a respectable lady would be considered a much greater offence than to the same towards a woman dressed as a prostitute, a factor which would not seem particularly relevant to us.
Viewed from the reputational perspective, however, it is obvious that a prostitute has no reputation for chastity to lose.Iniuria is a delict of potentially very broad scope. It has to be said that Ulpian’s scheme is a little artificial, and individual insults are not always easy to categoÂrise according to it. For example, insults to the body include of course physical assaults, but what about drugging a person to the derangement of their mind? That is certainly physical harm, and it is certainly actionable.[2487] Equally, however, it could be seen as inconsistent with the dignity of the victim.
Insults to a person’s dignity may in very broad terms be defined as acts and words that involve a lack of proper respect for the victim and his or her social standing. This is not to say that those of low social standing could not experience this form of insult — as Ulpian observes, even slaves have feelings[2488] — but it does mean that such insults to those of higher status would be seen as more serious. Treating a freeman as a slave was an insult of this kind,[2489] as was interrupting him in an insulting manner as he was speaking in court.[2490] Entering a house without the owner’s permission was actionable, even if the purpose was to summon the owner to court.[2491] [2492] Preventing a person selling his or her own slave was iniuria.[2493] More generally, it was iniuria to interfere in a person's going about his or her lawful business, for example by preventing the victim fishing in a place where this was lawful, using the public baths, conducting business, or conversing in a public place.[2494] This form of insult could also be committed indirectly, through a member of the pursuer's household. Examples are the debauching of the purÂsuer's female slave15 or making his son a laughing stock by taking him into a bar or playing dice with him and, presumably, getting him drunk or causing him to gamble away his money.[2495] Other such cases are the damaging of a statue set over the pursuer's father's grave,[2496] the detaining or otherwise mistreating of the corpse of a person to whom the pursuer is heir,[2497] and the commission of insulting acts at the deceased's funeral.[2498] Insults to reputation would certainly include false accusations of wrongdoÂing. While some of these cases involve interference with the victim's property rights, iniuria did not protect property rights as such. Damage to or interference with property was only actionable as iniuria if it could properly be considered insulting. For example, Javolenus considered the case where the owner of lower premises created smoke that affected his neighbour, or the owner of upper premÂises threw or poured things down onto those below. This would only be iniuria if done with an intention to insult.[2505] If property damage was caused by the perpeÂtrator's actions, other remedies were available.[2506] (2) Intention to Insult Not every insulting act gave rise to liability for iniuria. On the other hand, it appears that some acts were considered so flagrantly offensive that there would be liability for iniuria, even without a specific intention to insult. For example, one text tells us that it was iniuria to enter a house without the owner's permission, even if this was done with the intention of summoning the owner to court.[2515] It is, of course, highly culturally dependent what kinds of act will reach the necessary level of offensiveness, and the Romans'judgement on this will not always match our own.[2516] (3) Injury to Feelings It was essential that the victim actually be upset by the insult. (4) Lack of Justification Not every act of the kinds described above would give rise to liability. An act that was justified would not be iniuria. For example, force used in self-defence would not be iniuria. The disclosure of a person's wrongdoing would not be iniuria, as long as it was not done contra bonos mores, ‘for it is proper that the faults of the guilty be known'.[2518] A person who did something authorised by a public authority would not be treated as having done it with a view to insult, ‘for there is nothing wrongful in the execution of the law'.[2519] We have already seen this in connection with the actions of magistrates. This was not a complete licence to insult, howÂever, and a magistrate who abused his position in order to commit iniuria-type acts could nonetheless be liable.[2520] C.