Solatium and Injury to Feelings: Roman Law, English Law and Modern Tort Theory

Eric Descheemaeker

Research output: Chapter in Book/Report/Conference proceedingChapter (peer-reviewed)peer-review

Abstract

Injuries to feelings have been a perennially difficult issue for the law of civil wrongs. The Romanist tradition pressed into service the word ‘solatium’ (solace) to designate the box in which such injuries would commonly be placed and addressed. While the concept is not formally part of the common lawyer’s toolbox, English law has also resorted to it in a number of circumstances, typically related to wounded feelings. After having examined the use of the word in Roman law, the later civilian tradition and English law, this paper argues that the word solatium should be done away with, because it is intrinsically ambiguous and allows by its very existence the perpetuation of these ambiguities. More fundamentally, the underlying idea of injuries to feelings should be discarded as an organizational category in the law of tort. Feelings, it is argued, are not another interest in need of protection alongside property and personality rights; rather they constitutes a separate level of analysis (internal, as opposed to external), from which the entirety of the law of wrongs can be examined. When the law aligns the two levels of enquiry, it commits a category mistake which will inevitably result in inconsistency or double-counting.

Original languageEnglish
Title of host publicationIniuria and the Common Law
EditorsEric Descheemaeker, Helen Scott
PublisherHart Publishing
Pages67-96
ISBN (Print)9781849465038
Publication statusPublished - 2013

Publication series

NameHart Studies in Private Law

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  • Staff Seminar Series

    Eric Descheemaeker (Speaker)

    23 Sep 2011

    Activity: Participating in or organising an event typesParticipation in conference

  • Iniuria and the Common Law

    Eric Descheemaeker (Speaker)

    9 Sep 2011

    Activity: Participating in or organising an event typesParticipation in conference

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