Eric Descheemaeker, ‘Solatium and Injury to Feelings: Roman Law, English Law and Modern Tort Theory’

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 inquiry, it commits a category mistake which will inevitably result in inconsistency or double-counting.

Descheemaeker, Eric, Solatium and Injury to Feelings: Roman Law, English Law and Modern Tort Theory (January 30, 2013). INIURIA AND THE COMMON LAW, Eric Descheemaeker, Helen Scott, eds., Oxford: Hart Publishing, 2013.

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