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Evolution of Tort Law

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 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
Orenthal James Simpson born July 9th 1947, is a famous American football player.
Orenthal James Simpson born July 9th 1947, is a famous American football player. | Source

Differing Verdicts by These 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 murder 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 thirty-three and a half million dollars.

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, 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 by 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 are now called 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 born 21st December 1119 died 29th December 1170 and King Henry II born 5th March 1133 died 6th July 1189
Thomas Becket born 21st December 1119 died 29th December 1170 and King Henry II born 5th March 1133 died 6th July 1189 | Source

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 memorize Biblical Psalm 51, verse 1

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

— Psalm 51:1
The Jury
The Jury | Source

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 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 neighbor’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 “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.

The Court of Chancery
The Court of Chancery | Source

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; numerous acts of healing were attributed to Becket’s grace and benevolence.

Murder of Thomas Becket
Murder of Thomas Becket | Source

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 favor of development of an orderly system of equitable principles. Doctrines and rules took on 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, If he seeks equitable help he must be able to show, to the court’s satisfaction, he has behaved ethically in his dealings with the defendant. "Delay defeats equity" meaning, 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 neighbor’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 labor 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

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Comments 15 comments

lions44 profile image

lions44 6 weeks ago from Auburn, WA

Very interesting hub. Great historical background. Sharing everywhere.


fpherj48 profile image

fpherj48 6 weeks ago from Beautiful Upstate New York

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


Colleen Swan profile image

Colleen Swan 6 weeks ago from County Durham Author

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


Colleen Swan profile image

Colleen Swan 6 weeks ago from County Durham Author

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


chef-de-jour profile image

chef-de-jour 6 weeks ago from Wakefield, West Yorkshire,UK

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 profile image

Colleen Swan 6 weeks ago from County Durham Author

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


Gloriousconfusion profile image

Gloriousconfusion 6 weeks ago from United Kingdom

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


Colleen Swan profile image

Colleen Swan 6 weeks ago from County Durham Author

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.


Bercton profile image

Bercton 6 weeks ago from United Kingdom

Interesting works and good hub!


Colleen Swan profile image

Colleen Swan 6 weeks ago from County Durham Author

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


Larry Rankin profile image

Larry Rankin 5 weeks ago from Oklahoma

Interesting analysis.


Colleen Swan profile image

Colleen Swan 5 weeks ago from County Durham Author

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


Surabhi Kaura profile image

Surabhi Kaura 5 weeks ago from Toronto, Canada

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


Colleen Swan profile image

Colleen Swan 5 weeks ago from County Durham Author

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 profile image

Surabhi Kaura 5 weeks ago from Toronto, Canada

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.

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