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Tort Is About Harm

-- By RonMazor - 19 Feb 2010

A Medievalist in American Court

Medieval law gets a short shrift. Too often, Medieval law is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Law professors should know better. Especially those who teach tort.

If they were more familiar with Medieval law, they would know that it captures law at its most basic. It reflects a time when people did not rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private, often violent manner. The result was a body of law that possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, Medieval tort could not leave grievances/harms uncompensated/unsatisfied. Its operating (legal) doctrine/principle: strict liability.

If Tort professors knew more legal history, they would understand that Medieval law did not appear in a vacuum.

And so, when one looks at Medieval tort, one finds a law At its essence, it reveals the lines people tend to draw regarding that a lot of it is based on Roman law, preserved equally by the Byzantines and the Barbarians. Salic law, "at least we don't do things like they did in the Middle Ages,"

American tort law is wrong. Simply wrong. Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth: Tort is about harm. Not blameworthiness, or moral culpability, or reasonable precautions. Not prudence, or recklessness, or luck. The only consideration that should be considered is whether or not you caused harm to another person.

A (Very) Short History of Tort Law

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