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Evolution of Tort Law

Colleen is an attorney in the United States, and a solicitor on the roll in England and Wales.

What is a Tort?

The word “tort” stems from the French “wrongful act”

Nearly every tort is mirrored in the criminal law system, though separate terminology is deployed. The difference between these two branches of law, i.e., tort law and criminal law, is that criminal cases are perceived as a crime against society as a whole. Hence, a governing body, such as in England, the Crown, or in America, some level of the court system, decides upon the guilt and sentencing of a defendant.

Thus, a criminal defendant is sued by the State in the form of one of these entities; if found guilty of the crime charged, he will be sentenced to whatever penalty is deemed justified.

On the other hand, civil laws, known as torts, will allow one individual to sue another. If the plaintiff prevails, the defendant (tortfeasor) will receive a court order to do or refrain from doing whatever act has brought this case within judicial auspices. If viewed as appropriate, the defendant may also be forced to pay monetary damages to the plaintiff, similar to a fine ordered in a criminal court.

No man is prejudiced in favor of a thing, knowing it to be wrong. He is attached to it on the belief of its being right.

— Thomas Paine

A civil court jury held O.J. Simpson to be legally responsible for the deaths of two people even though he had previously been acquitted of murder in a criminal court.

A civil court jury held O.J. Simpson to be legally responsible for the deaths of two people even though he had previously been acquitted of murder in a criminal court.

Differing Verdicts by Separate Courts

This type of divergence was shown in the renowned 1995 criminal case, generally dubbed People vs O.J. Simpson. Here, sports icon Orenthal James Simpson, charged with the murders of his former wife Nicole Brown-Simpson and waiter Ron Goldman was absolved by a criminal jury.

Still, in 1996, the Brown and Goldman families brought a civil suit against O.J. Simpson. Here, the jury found him liable for causing the wrongful deaths of these two victims and awarded the plaintiffs $33.5 million.

In addition, while a criminal court demands, as a standard of proof, a belief in guilt beyond a reasonable doubt, the civil burden of proof is less stringent, and is instead based on clear and convincing evidence, or a high probability. Just as tort law changes “murder” to “wrongful death,” “liability” is utilized rather than “guilt.

Roots and Origins of Tort Law

Prior to the French William the Conqueror’s 1066 Norman conquest of England, the legal system was somewhat haphazard, conducted on a more or less case by case basis. After 1066, eminent judges were delegated to travel about a given region in order to absorb those village laws which had developed over two centuries.

Benefiting from this information, these judges noted and implemented precepts they deemed most fair-minded into their own court findings. In time, when referred to often enough, these cases became what we now call legal precedents.

Sessions during which these judges conducted trials were dubbed “assizes,” or in modern terms, “sittings.” Even now, the place from which a judge renders verdicts and sentences is called “the bench.” Once established, these precedents were meant to be applied equally to every member of society, from a lord to a serf, bringing about the term “common law.”

Thomas Becket and King Henry II

Thomas Becket and King Henry II

Conflicting Claims Between King Henry II and Archbishop Thomas Becket

In 1166, a century after the Norman Conquest, William the Conqueror’s great- grandson Henry II instituted a statute, according to which a jury of twelve men in each county would be appointed to decide whether an alleged crime had been committed, and then the type and extent of that defendant’s sentence. Then, as the common law solidified into concrete strictures, defendants sought a less ironclad avenue.

One way to circumvent the perceived harshness of common law courts was to become, in name at least, a member of the clergy. This method fostered the term “benefit of clergy.” Those eligible for its protection could be tried by the Ecclesiastical courts, known to offer a softer, more humane framework.

Not surprisingly, this accelerated the urge to join the clergy, especially when this could be done by any man who could show the most basic ability to read aloud the easily memorized Psalm 51:1.

Have mercy on me, O God, according to your unfailing love; according to your great compassion blot out my transgressions.

— Psalm 51:1

Under King Henry II, a jury of twelve men was instituted in each county. Juries had the power to render verdicts and determine the punishments of convicted defendants.

Under King Henry II, a jury of twelve men was instituted in each county. Juries had the power to render verdicts and determine the punishments of convicted defendants.

King Henry II, aware of this source of eluding justice, grew enraged by this circumvention of his royal authority. It seems a large part of his fury was sparked by what he viewed as Thomas Becket’s disloyalty. Having promoted him from chancellor of England to archbishop of Canterbury, Henry II seems not to have envisioned that his friend and seemingly stalwart ally could become a competitor on any level.

A Mounting Malevolence

During this early division between church and state, Becket’s courts would first be dubbed courts of chancery, later courts of equity, and currently, civil courts. Despite Henry II’s fury, Becket retained his stand as to the validity of any claim involving even a nominal clergyman being entitled to judgment in his Ecclesiastical courts.

A further incentive to plead before the courts of chancery lay in that the common law courts could award only financial damages. This meant if a rose garden was being regularly trodden down by a neighbour’s horse, the gardener could be recompensed only in financial terms.

The destruction of his garden and his emotional sense of loss and frustration fell outside the range of common law. In addition, courts of chancery could order a perpetrator to do or refrain from doing whatever action had caused the plaintiff’s distress.

Thus, the law of equity was meant to create a forum where emotional pain, as well as financial loss was considered when reaching a judgment. In addition, claims brought in courts of equity were heard in English, rather than the traditional Latin. This meant the words read out and voiced in a court of equity were equally understandable to all those engaged in the verbal sword play.

The law of equity has been described as a “gloss on the common law.” This gloss proved especially true when a court of equity handed down a verdict contradicting that of a common law court.

Conflict Becomes Deadly Combat

As to the king and archbishop, there conflict intensified. Hence, although Becket found some refuge in the court of France, England remained divided by this dispute. When, after Becket’s return to England, no compromise could be reached, Henry II is believed to have urged his barons to eliminate him by means of his often-quoted plea/demand to his barons: “Will no-one rid me of this meddlesome priest?

Four barons, acting on what they believed to be their monarch’s command, soon found and killed Thomas Becket. Shortly thereafter, the king, seen as the impetus of this crime, was subjected to hostility, edging towards hatred. Ultimately, by way of appeasement, King Henry II felt impelled to undergo a public whipping by way of a penance.

In addition, as tends to happen with heroes, Becket’s murder generated far more power than he might ever have achieved had he died in a natural, timely way. Not long after his death, the pope canonized him, thereby creating his veneration as St. Thomas The Martyr. Various shrines were built to commemorate him, and numerous acts of healing were attributed to Becket’s grace and benevolence.

The murder of Thomas Becket

The murder of Thomas Becket

Development of the Law of Equity

Initially, as with common law, decisions made by the courts of equity were predicated upon the views and conscience of an individual chancellor. In time, however, this ethical choice was abandoned in favour of the development of an orderly system of equitable principles. Doctrines and rules took on a definite form.

The court of equity developed its own principles, embodied in maxims such as: “He who comes into equity must have clean hands" meaning that if someone seeks equitable help, they must be able to show, to the court’s satisfaction, that they have behaved ethically in their dealings with the defendant. "Delay defeats equity" meaning that waiting too long to bring a claim will render it invalid. In modern terms, this is deemed the statute of limitations.

The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race.

— Oliver Wendell Holmes

Interweaving of Act and Intent

The major dividing line between past laws and laws of today is the separation of what a defendant may have done, and his motives for doing so. Originally, only acts were considered. According to Chief Justice Brian “The thought of man shall not be tried, for the devil himself knoweth not the thought of man.” (In many early cases, the names of the parties and judges were either not recorded, or have been lost).

Still, the perception of the results of an act, rather than whatever intent might have sparked it, was voiced in an 1146 case where a judge held, if anyone commits an act, however acceptable in itself, which may impact upon others, he has a duty to conduct this act, to the utmost level of his ability, in a manner which causes no personal injury or property damage to another.

To paraphrase his judicial opinion, referring to himself in a hypothetical sense, the judge explained if in the process of lifting timber in order to construct a building, I drop a piece of that timber, causing harm to my neighbour’s home, he will have a valid claim against me. It will not matter that my construction was entirely lawful, or that I did not intend the result to occur.

Hence, inferentially, the defendant owes the plaintiff the monetary compensation needed to repair the harm, as well as the cost of the labour involved.

A Modern View of Intent

In terms of both criminal and tort systems, intent is pivotal to nearly every judicial decision. Where the dropping of the timber can be shown to have been intentional, or due to extreme negligence, it is likely to result in punitive as well as compensatory damages. As their words imply, compensatory damages are meant to force the defendant to pay for the actual harm, perhaps replacing a roof and/or a number of shattered windows.

On the other hand, punitive damages are intended to punish, where intent or negligence reaching the edge of intent, can be found by a judge or jury. In modern terms, most tort cases are resolved by a judge, unless the issue is of such a serious nature as to require a jury.

Returning to our historical tapestry, as centuries passed, the importance of intent became recognized, although at first in a tentative way, with a lingering sense of uncertainty. Thus, in a 1681 case, a judge determined: “The law does not so much concern itself with the intent of the actor as with the loss and damage of the party suffering.” This indicates intent had begun to be seen as a force which, if not yet central, could no longer be dismissed, as lacking the slightest significance.

The jury passing on the prisoner's life may in the sworn twelve have a thief or two guiltier than him they try.

— Shakepeare

Underpinnings of Tort Law

In its most basic terms, the source of tort law is to shield society from chaos and pandemonium by establishing a court in which one individual can bring a claim against another, without resorting to private revenge.

The law of torts, unlike such branches of litigation as contract and real property, considers such concerns as the loss of dignity experienced by a party bringing a claim for personal injury. Often, it is the sense of humiliation of being exploited or tricked which is, in truth, the source of a claim.

Violations of dignity can be viewed as the western equivalent of other cultures concepts of losing face. This system allows pain and suffering, as well as other types of emotional distress, to be considered when reaching a verdict in a civil court of law.

© 2016 Colleen Swan


Ntuuyo Axam on November 23, 2018:

Very intresting work, i have enjoyed

Colleen Swan (author) from County Durham on November 13, 2018:

Thank you for your kind words. I sourced my material from many books, some read many years ago. I would not recommend a particular book, but would advise you to read anything you can on the subject.

Nellyciana Eleutery on November 13, 2018:

I would like to thank the author of the article for providing the very reliable information which can be used as a source knowledge while studying and widening the range of understanding the origin of tort.

can you please recommend some other related books to your article for more knowledge

Colleen Swan (author) from County Durham on February 18, 2018:

Hi, Thank you for reading this article. As to your questions, in every area of life people use whatever tactics they can to triumph. Lawyers have an especially bad reputation for this. As to hiring expensive attorneys, everyone pays for the best service they can. I do not feel qualified to comment on the O.J. Simpson trial. There were probably several factors which influenced the final decision. It is however always worth noting cases where criminal and civil verdicts differ. Colleen

ValKaras on February 17, 2018:

Colleen---Being a lay person in matters of law, I am wondering how much truth is in the often uttered sarcasm in courtroom drama movies---by lawyers---that "the outcome of a trial has nothing, or little to do with justice, but everything to do with the technicalities in the process of it."

By technicalities I mean the abilities/tricks of prosecution and defense to sway the support of the jury to their advantage.

You mentioned O.J. Simpson's trial, which just might be an example of the above. Was it the team of highly able and expensive defense attorneys who ultimately made him acquitted---or was it all those convincing pieces of evidence which the Judge Ito didn't allow---or was it a political maneuver of preventing a major riot by black community and his fans-----or was the guy convincingly innocent?

Which also made me wonder how much is true in that old saying that "law is a cobweb in which small flies get caught, and the big ones tear".

However, I did enjoy your very professionally presented article.

Colleen Swan (author) from County Durham on January 28, 2018:

Hi Roy, Nothing could be more heartening than a comment like yours. Torts has always been my favorite area of law, due to its human and emotional aspects. It's uplifting to think someone else shares my passion for what I often think is an underestimated avenue of the legal system. Colleen

Roy on January 28, 2018:

Wow! I liked Tort but now i am loving it. Last week i gave a class test on the subject and today here i have a big "A" written on my answer sheet. I took the liberty of including some of the historical factors discussed above in my paper and i must say, my college professor is super impressed.


Colleen Swan (author) from County Durham on November 03, 2017:

Hi, I do not recommend any specific books, and suggest you research via the internet and further articles. Good luck with your studies.

Ghulam rasool on November 03, 2017:

as a sophomore student of law in Pakistan it is difficult to get the tort law easily it is complicated and not in practice in Pakistan, so will you suggest me the book for tort law.

Surabhi Kaura on October 31, 2016:

My story is a little different, Dear. I liked the theoretical aspect of law but not the practical one. So I left the legal profession and switched to teaching English instead. Anyhow, I commend you for sharing your knowledge with everyone. Loving thoughts.

Colleen Swan (author) from County Durham on October 31, 2016:

Hi Surabhi, Thank you for your thoughts on my hub. I truly miss practicing law, so am enjoying a chance to at least write about it.

Surabhi Kaura on October 31, 2016:

Interesting read! Thanks for sharing, Colleen. Tort and Contract Law was always my favourite.

Colleen Swan (author) from County Durham on October 26, 2016:

Hi Larry, Thank you for looking in, glad you found this interesting.

Larry Rankin from Oklahoma on October 26, 2016:

Interesting analysis.

Colleen Swan (author) from County Durham on October 25, 2016:

Thank you Bercton, I'm glad you found this of interest.

Bercton from United Kingdom on October 25, 2016:

Interesting works and good hub!

Colleen Swan (author) from County Durham on October 25, 2016:

Hi Diana, Tort law was always my favorite branch, due to its human element. I do believe dignity and loss of face to be the source of many such cases.

Diana Grant from United Kingdom on October 25, 2016:

Very interesting article - I studied Tort for my law degree and can hardly believe how much I have forgotten since my retirement

Colleen Swan (author) from County Durham on October 24, 2016:

Hi Andrew, I sense we have a rapport in terms of cases brought into the legal system. As I think my hub shows I am fascinated by the human element in every area I write about. I assume you find the emotional aspects more intriguing than the pragmatic ones. Colleen

Andrew Spacey from Sheffield, UK on October 24, 2016:

Fascinating read. Having recently finished Kafka's The Trial, I come across this fine article! I enjoyed the historical perspective which allows an insight into the present day civil law. I wonder how many people sue each year and what might be the most common cause? And what happens when a case is settled out of court?

Colleen Swan (author) from County Durham on October 24, 2016:

Thank you Pauline. I enjoyed putting this together. I feel inspired to do more work related to torts, they are our building blocks of law. Colleen

Colleen Swan (author) from County Durham on October 24, 2016:

Thank you C.J. Lions 44. Happy you found this interesting. Thank you for sharing. Colleen

Suzie from Carson City on October 24, 2016:

Colleen, I always enjoy your work~interesting as well as educational. Topics on law, the justice system and the myriad of issues connected are a special favorite.

You never disappoint. Thanks for this fascinating read. Paula

CJ Kelly from the PNW on October 24, 2016:

Very interesting hub. Great historical background. Sharing everywhere.