4,000 years of “tort reform”
As an Atlanta trial attorney representing folks who are badly hurt in interstate commercial trucking accidents, and the survivors of those who are killed, I spend a lot of my time flying around the country to take depositions of trucking company executives and truck drivers, and briefing issues under federal motor carrier safety law. It’s a specialized practice area that a lot of folks don’t even realize exists.
But in the midst of the "pick and ax" work of litigation, sometimes it’s good to step back and look at the tort law system in historical perspective. Some folks who push hardest to cut off the rights of folks who are hurt badly due to someone else’s carelessness seem to think that this whole area of law sprung up in the past generation.
But the roots go back 4,000 years.
The story of tort law begins around 2100 B.C. in ancient Sumeria, the birthplace of Abraham, in the area of the Tigris-Euphrates delta in present day southern Iraq and Kuwait. Much as later American tort law would emphasize business, insurance, motor vehicles and manufactured products, Sumerian laws focused on their context, including pragmatic rules for orderly compensation supplanting the instinct for uncontrolled revenge. The Laws of Ur-Nammu (c. 2112–2085 B.C.) mandated compensation in silver for putting out a man’s eye, and the Code of Lipit-Ishtar (c. 1934-1924 BC) set a negligence standard for property damage to a house. The Sumerian city-state of Eshnunna developed a legal code (c. 1900 B.C.), that expanded upon these principles of compensation for damages done to another, addressing conflicts over sunken boats, gored oxen, biting dogs and collapsing walls.
A couple of centuries later, upstream in the Tigris-Euphrates river valley, Sumerian laws become the foundation of the Code of Hammurabi (c. 1700 BC). Included were early versions of the principal features of tort liability – intentional tort, negligence, strict liability, indirect causation, fixed versus variable compensation, notice, knowledge, objective standards for conduct, monetary compensation for private harms, and perhaps even contributory negligence.
When Moses led the Hebrews out of Egyptian slavery (circa 1440 B.C. – 1290 B.C.), the Mosaic laws included echoes of Sumeria (father Abraham’s hometown) and Hammurabi. The Torah is filled with what we think of as ‘tort’ rules, indicating the depth of the roots of tort law in the Judeo-Christian tradition. Precursors of tort law in the Pentateuch include the spreading fire, the straying livestock, the uncovered pit, the bull goring another bull (property damage), the bull goring humans (personal injury), the injunction to maintain a railing around one’s roof, compensation for accidental injury of one man by another swinging an ax, and that one man quarreling with and injuring another man must pay the wages of the injured man until he recovers.
A thousand years after Hammurabi, the legal system of ancient Greece began to emerge. The emphasis was on fairness and integrity of judges more than the specifics of rules and doctrine, as judges were chosen by the parties much as private mediators and arbitrator are chosen today. However, running through is a growing preference for resolving disputes through just compensation rather than the bloody retribution and feuds of old. Principles of corrective justice emerged.
Plato in The Laws wrote of "little repeated torts between neighbors" for which there was strict liability to others for either personal harm or invasion of property, and awards of a multiple of pecuniary damages for “churlish” conduct. Aristotle in Nichomachean Ethics taught the rectification of marginal inequality created by involuntary transactions in which either an intentional act or an unintentional “mistake” – equivalent to concept of negligence in modern tort law – causes foreseeable injury. The amount of inequality to be rectified was the the community’s valuation the physical injury due to the defendant’s wrongful act. Customary Greek law was first codified by Dracon, circa 622 B.C., with penalties so harsh as to give us the word draconian and as to require reform within a generation. By 594 B.C., Salon was given a year to reform the Athenian constitution, legal code and law courts. Under the Code of Salon, juries of as many as 500 members determined both fault and penalties, a spectacle against which those who distrust modern juries would surely recoil.
Early Roman law was simple and pragmatic, arising from an agrarian culture thrust into a role of economic and military dominance. The disparate sources of customary laws were codified initially on ten wooden panels around 889 B.C. by a panel of ten patrician jurists (Decemvirs), into the “Ten Tables,” later expanded by 450 B.C. to the “Twelve Tables.” Private wrongs were called "delicts." The penalty for intentional homicide was blood vengeance at the election of the victim’s family, while for an unintentional homicide payment of a prescribed number of cattle or a ram (scapegoat) for ritual sacrifice by the victim’s family. For accidental personal injury there was often an election between retaliation in kind or a specified payment. Delicts addressing various categories of property damage required two or three times the amount of actual pecuniary loss.
The Twelve Tables were replaced by the Lex Aquila, enacted by popular plebiscite circa 286 B.C. While preserving the general rule of strict liability for one’s actions, the Lex Aquila introduced elements of fault and negligence. To encourage truthfulness, willful denial of a meritorious claim could result in doubling of the damages awarded. The Lex Cornelia ( c. 67 B.C.) adjusted monetary remedies upward to account for four centuries of inflation since adoption of the Twelve Tables.
Throughout Rome’s thousand year dominance, its laws were continually reformed, refined, and influenced by legal scholars, culminating in the Justinian Code. Except for the limitations inherent in a class-conscious, patriarchal society heavily dependent on a slave economy, Roman law provided the foundation for civil remedies for personal injury, including (1) money damages as the dominant remedy in resolving civil disputes; (2) the identification of instances in which strict liability for the consequences of one’s actions might not apply, such as in the instance of action not voluntarily taken; (3) transparency in judicial decision making as Praetors were required pronounce the law they would apply; and (4) judicial discretion to determine when strict application of legal rules, or the absence of rules and remedies, would produce a manifestly unjust outcome.
Over thousands of years, these early foundations of tort law led to the development of English common law and our American tort law system. This body of law has been in the process of reforming to meet the changing needs and conditions of western civilization for 5,000 years.
Sometimes the pendulum swings too far in one direction or another, and when that happens, lawmakers and judges tug it back toward the middle of the path. Fortunately, we have some legislators in both parties who understand the issues in enough depth to make wise choices rather than being consumed in the urgency of political sausage making while struggling with the immediacy of budget problems and the cacophony of interest group demands. Some of the folks who beat the drums loudest for "tort reform" go too far, sometimes out of a desire to generate political campaign contributions from particular interests. But some ideas in the "tort reform" area can have merit if applied fairly and in moderation.
Over time, despite the excesses on the margins, the path of development of personal injury law tends to be consistent with Georgia’s state motto: "Wisdom, Justice, Moderation."
Ken Shigley, an Atlanta attorney, is a national board member of the Interstate Trucking Litigation Group. His practice focuses on representing people who are catastrophically injured, and families of those killed, primarily in commercial trucking and bus accidents. Mr. Shigley also has extensive experience representing parties in products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, has been listed as a "Super Lawyer" (Atlanta Magazine), among the "Legal Elite" (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). Currently he is treasurer, and unopposed as a candidate for president-elect, of the 41,000 member State Bar of Georgia.
For criteria to be considered in selecting an attorney, see The Smart Consumer’s Guide to Hiring a Great Lawyer.