NARRATOR: Thanks for joining this episode of the No. 86 lecture series, in which Professor Richard Epstein discusses Torts in the Roman Law. Episode 1 topics include: How the law of torts fit into the Roman Law system How the Romans dealt with theft and restitution Destruction of property This lecture is part of a series with Professor Epstein on how this ancient legal system can provide crucial insights about modern problems. Professor Epstein is one of the most prominent legal scholars of our day. He is the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, a Senior Fellow at the Hoover Institution, and Professor of Law Emeritus and a senior lecturer at the University of Chicago. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: What is a tort? How did the Romans deal with torts? RICHARD EPSTEIN: Essentially the law of tort is designed to prevent people from deviating from those particular rules which allow systems to work well, namely the rules that protect the autonomy of the person, namely the rules that protect the property you've acquired, either through original possession or through voluntary transaction. The question is, "What are the kind of threats to these things, and how does the legal system deal with them?" You can divide the threats into two very broad categories. The first category is theft and the second category is destruction. The difference between them is very clear. In a case of theft, what happens is something which you owned now is in the hands of somebody else, and it's a live asset that can be transferred to other individuals, or consumed in one form or another. If you are talking about destruction of property, the thing ceases to exist, and the question of subsequent transfers and manipulations, in effect, is put to one side. If you're thinking about theft, for the most part, if somebody deliberately steals something from you, there's very little by way of an affirmative defense that you can do to excuse, or to justify, the theft in question. If it turns out your property is destroyed, these questions of excuse or justification become much larger: Did you put yourself in harm's way? And did you trespass on somebody else's land? Did you consent to the particular risk in question? Are all very live issues. And so, when you go through guys, he starts in effect and goes through the contractual obligations, and then what he does immediately is he switches over to the delict side, or the tort side. Delict is kind of a funny word, which means it's part criminal, for which mens rea, a guilty mind, tends to be relevant, and part tort, which means we look at the consequences of the defendant's act, and less at the motivation that put it into place. The question is how do we put all of these things together? Let's start with the theft category. The Roman law for theft was a word called contrectatio, and it covered two kinds of cases, one relatively simple, and one very difficult to analyze. The simple sort of case is that you have somebody in possession of property, and a stranger comes along and simply takes it, and puts it into his own possession. So you go from a situation where the owner has everything, to a situation in which the owner has nothing. Everybody understands that these kinds of thefts are the greatest danger to society, because you cannot protect yourself by choosing an intelligent thief, even though you can protect yourself to some extent, by choosing an intelligent partner, or an intelligent valley to hold and store your particular goods. So the Romans had then started off with trying to figure out how you deal with these cases, and they divide the world into what they call manifest and non-manifested. And we all understand that situation: manifest means open, right, on the one hand, or the other equivalent to the that is manifest, means caught red-handed. The question is, is this a legal category, or is it just simply a method of proof. To the Romans, it turned out that this was, to some extent, a legal category, because since these are quasi-criminal actions, you punish the wrongdoer not only by forcing him to restore the good in question, but by imposing fines for the benefit of the victim, which was some multiple of the particular loss that was inflicted. And that number would be very large, typically four fold in the case of manifest theft, and it would be much less in the case of non-manifold theft. It would be the one is just a simple damages is perhaps double. So you introduce these kinds of categories, and then the question is 'what's the difference?'. Well, in the end, every one of these transactions are the same - I start owning something and you end up possessing it. The manifest theft is, you come into my garden, and it's important to understand that this is a trespass, that if you're entering a place where you don't belong, and then you take this stuff. If I catch you in the act of taking it, in my particular garden, then that's very easy. Suppose it turns out you've already taken it, and now are starting to leave the garden, that's a little bit more difficult. But the Romans thought that those two cases were sufficiently close together, because if you define manifest theft only to apply it the instant at which you put something in your hand, there would be virtually no manifest theft. And if you're worried about questions of proof, if somebody's a trespasser in your garden, that's pretty convincing evidence that he doesn't belong there when he has something that he's heading out which is yours, and so the differences in terms of certainty of offense are relatively low, and you put the higher offense there. Then, once they leave the particular premises, they are no longer engaged in manifest theft, although it had been suggested at one time, that so long as you were in transit it was a form of manifest theft, but if in fact, you were on a public street, now the trespass element has disappeared with the case, and the many more legitimate reasons why it might be there. What happens is, essentially, we draw this particular line. In modern law, it really doesn't last, because, yes, there are differences with respect to proof, but if you're trying to think about an optimal theory of deterrence, is there any reason why this thing ought to be cut into past, if in fact he's left the garden long gone on the outside. What we tend to do is substitute rules about proof beyond a reasonable doubt, and if it turns out that you can make up the deficit, which is from the fact that the guy is no longer on your premises, then, in effect, we put the full force of the law against you. These are typically not actions for restitution, or for damages. Generally, they are public actions of enforcement by the government. So we have these particular rules. PUBLIUS: What happens next? What sort of rules govern discovery and restitution? RICHARD EPSTEIN: There are two kinds of rules that you have to deal with, and one of them is the question of 'the thing is now discovered on the property of somebody else, and this is a very serious kind of issue, because now you're dealing with somebody who's receiving stolen goods essentially, and keeping them as his own. So, what you're allowed to do is to conduct some kind of a search. But whenever you want to do a search, it turns out that there's a very serious risk on the other side, which we all know from crime shows. Namely, the risk of a plant - which is that somebody will come on to your premises and will plant something there, claim that it was stolen from his particular property, claims that he doesn't have to show when or how it was done. It was sufficient to show that it was on your particular premises. So in order to control against that, the Roman had the following situation: what you had to do was to have a bail loincloth, meaning you were largely naked, so you couldn't smuggle this thing, then you had to have your hands occupied by holding a platter of some sort or another, so as to make sure that busy hands do not create mischievous activity. And those things would essentially take that particular element. The other question is, if you're dealing with them, sometimes you hand a thing off to somebody else, and then they sell it to a third party. Generally speaking, normally we like transactions of sale, because what they do is increase the probability of gain for both parties. The question is, why is it in this particular case, that when you have a subsequent sale, which is a win-win transactions for both parties, we nonetheless treat this not as the ordinary sale of goods, but we treat it as an illicit transaction, right? A fence type transaction. So not only will we not enforce this particular transaction, but we will also take active steps in order to punish it. The explanation becomes very clear, when we start to see how the second transaction feeds back into the first transaction. The way in which this particularly operation works is as follows: If I'm going to steal something from you, and the only gain that I can get from this thing is the use that I have of it, it's going to be a situation where that return is likely to be fairly low. Going into a place and stealing something may well be the kind of thing I take is a plate that I don't want, need, or use. If I can sell it, then in effect what happens is, the gain that I'm thinking about is not it's value in use to me, it's the greater value in exchange that happens by virtue of the fact that I can sell this property on to someone else. If it turns out that the gain in use is, say, only ten, and the gain in sale is twenty, if I can realize that twenty, I'm more likely to commit the theft in the first place. So what you have to do is essentially make illegal subsequent transactions, which actually increased the probability that there will be an initial theft of one form or another. So all the rules, both in Roman Law, and in Modern Law, which are designed to deal with the disposition of various forms of property, essentially have this particular characteristic. The subsequent sale of stolen property, by people who know that they're stolen, should count as a form of illegal behavior. We have a separate tort for that, but if you go back to the broad definition of contrectadio, that I mentioned in the beginning of this discussion, that is an improper meddling or use of a particular series of goods, you don't need to create a second wrong, as you do in a world in which theft only includes the so-called asportation of chattels, carrying off something, now you can say you've meddled with this particular thing, even if it turns out that what you have done is just sold something, even though you were not responsible for the way in which is was taken. This is a case in which the broader Roman definition essentially is, in many ways, preferable to the narrower definitions that we have in common law. The common law has to deal with these problems, so what it does is it creates a family of theft defenses, of which the reception and sale of stolen goods, hot goods, or whatever you wish to call them, is certainly part and parcel of the overall type situation. PUBLIUS: Did the Romans have a comprehensive definition of “theft”? RICHARD EPSTEIN: One of the other interesting philosophical questions that the Romans asked about all of this stuff, is, when you are dealing with things, how flexible is our definition of theft? Gaius has this very interesting passage which deals with a kind of philosophical question about realism and nominalism. What he means by that is, are these terms, as Lewis Carroll said in Alice in Wonderland, "so infinitely manipulatable that anything that we call a theft can become a theft, or in modern law, everything that we call a nuisance, can become a nuisance"? It turns out that this is a very high stakes question, because if, in effect, you are allowed to put things into the class of theft as a matter of stipulative definition by way of legislation, then it's a serious threat to the rule of law, because now somebody can say 'we are going to treat as theft, anybody who receives goods from somebody who sells it to him at a price which is below, or above, that which we, as a matter of law, think to be appropriate. So all of the sudden, dealing with price control issues becomes criminal type conduct. Gaius is very resistant to this, and so what he says is that it doesn't become theft because you call it theft, and he has this long passage in which he says, "if in fact you do this, you may decide to attach by statute a remedy that is similar to that which we give for theft, but you cannot, by statute, simply declare something to be a theft, if it turns out that it's not going to be a theft". The conditions of language hold, and the definitions that I've given at the beginning really bind. Why is this important today? If you take the word nuisance, you have exactly the same problem. I can define a nuisance not only to be an offensive, non-physical invasion of property, which interferes with somebody's use and enjoyment of his land, through smoke and so forth. You can define anything as a nuisance, like a bug inside a bottle, and so forth. And if you can define nuisances extremely broadly, when it comes to determining the principles of state power, the basic common law intuition and constitutional institution limita - intuition was, to the extent that you're dealing with nuisance like behaviors, they're wrongs, you could shut down without compensation. If it turns out you're allowed to expand the definition of a nuisance arbitrarily, then it turns out you could shut down anything you don't want. It becomes very easy to say 'we're gonna treat an apartment house in a crowded neighborhood as though it's a nuisance', so we can shut this thing down in one form or another. The nominalism essentially turns out to be fatally inconsistent with the rule of law. It's very instructive that, when you start to look back at the way in which Gaius dealt with this particular subject, that he was very alert to the dangers. PUBLIUS: What other sort of theft situations would be covered in the Roman law? RICHARD EPSTEIN: Now, the problem that we've talked about with respect to theft is essentially the kinds of situations where you have just strange relationships in all the rules, but as we indicated earlier, whenever you're dealing with relationships amongst various people, what you have to do is to deal with situations in which there is some prior existing relationships between the parties to a particular transaction. And so, one of the early cases that the Romans have to deal with, is essentially what happens if you have a bailment of goods, and it turns out that the bailee deliberately abuses the authority that he's been given by the bailor. The standard case is one in which you are basically given an animal and told that you can ride it, and then what you do is you enter it into a rodeo contest, and it turns out that under the confusion it gets seriously injured. What the Romans said is if there is an express limitation on the kinds of use, and you exceed those particular limitations, going beyond the permissible level is an impermissible misappropriation and it counts as theft. The general rule has always been if you can make something troublesome, explicitly, you then have to worry about the question of if there are any implied limitations. Certainly it turns out, in ordinary uses, there are. What the general principle is, is we don't want the bailee to make a use of an animal which is any riskier that the ones which the bailor makes of it. So if the bailor is basically the owner of the thing, is happy to walk the animal and give it to a trainer, you can't go out and take it into those things. If it's deliberate, going beyond the source of authority, that excess of authority is treated as a form of theft, which is governed by these rules. And so what we do now is we have the second case of theft, in which we first dealt with strangers, and then we start with people who have been paired up one way or another. Now the other variation of divided property that we have to deal with is actually quite complicated and quite important, and it's the following situation: We do have a bailment in which I give something to you. You may be a cleaner, who is basically going to receive a fee in exchange for taking care of my garments, or you may be somebody who's holding something that I have for safekeeping, that would be a deposit kind of contract, and what happened is a thief comes along and takes something out of the possession of these bailees, and converts it to his own use. Nobody denies the fact that when this particular thing happens, that the thief has committed a wrong, but the hard question you have to ask is, who is going to have the cause of action with respect to the theft, when the interests turn out to be divided. The modern response on these cases is often to allow these two people to sue together. The join the interest and recover the thing as one, and having recovered it, then they figure out how to divide the proceeds between the two of them, roughly to match the terms of the contract that existed before the theft took place. Romans were very reluctant to do systems like that, because the joinder, which is what's happened when two people come together, is a fairly sophisticated form of civil procedure that requires cooperation and coordination between them, and given their relatively limited legal resources, they tended to want to concentrate virtually all causes of action in a single person, so as to avoid the problems of a semi-forced partnership which takes place, when you allow these two things to come by way of joinder. And so then the questions you would have to ask is, which of these two particular parties had the cause of action on the one hand. And then how it is that you would divide the proceeds afterwards for dealing with these kinds of situation. And this actually a very interesting question. The way in which the Romans tended to answer the question is they said, "If the loss had taken place in a non-theft type situation, who would bear that particular risk of loss?" And once you have identified that party, that's the party which is entitled to bring the action off a suit as against the third party. And so we now have to go back through all the forms or bailment and see the way in which this thing starts to check out. And so remember we talked about a system of deposit in which you give something to somebody for safekeeping. Generally speaking, if the thing is stolen he is not going to be held responsible for it because he has not acted in bad faith. So the positive interest of the owner to recover the thing is generally thought to dictate that he is the party that is going to bring the action against the third person to recover the penalty or whatever else it is that is appropriate in the case. And that the bailee, who is the depositee is simply is dropped out of the situation. And this is a perfectly sensible accommodation, because generally speaking after this particular arrangement is done and the bailor recovers full amount there is nothing that he owes to the other party. So you don't have to worry about the step two of the problem that you have, which is the distribution of the proceeds between these two parties. And so, that's fine. Now if you change the situation a little bit and now assume that you have the tailor or the brush-man or somebody or other who is getting some benefit from this transaction and the property is taken from him, the law starts to think about negative interest. The argument is, generally speaking if you are doing something for payment, there is a very high probability that you will be required to pay for the loss of a third party. So you're the one that starts to bring the action. If it turns out that you recover the thing in question, when you do so you then have to return it. And the ordinary course of business is somebody else. And then in effect if there's a penalty you probably get to keep it, but you have to transfer the residual amount of the value of the goods to somebody else. So the Roman type situation essentially, starts to figure out in all these kind of arrangements, first which of these two things dominates; the bailor or the bailee, and then how you use it. Now it turns out there's one final wrinkle on this which is worth mentioning. And that's the situation that is created when you have somebody who say, runs a shop and there are hundreds of things taken from that shop, each of them having a bailor on the other side. And at this particular point the key feature that you see is that the transactional savings that you have by bringing the bailee as opposed to a different hundred bailors bringing suit are enormous. And so when the English law had to face this problem many years later in the case called the Wingfield, what it decided was that the owner of the ship from which all the cargo was stolen or destroyed could bring an action against the third party. And then it would have to hold the money in trust with respect to all of the individuals to their extent of their interest. And so all of the sudden instead of thinking of bailments and so forth, we're actually thinking which was close to class- action. And you can see a complete reversal on act due to torts-joinder. The Romans were very suspicious of it because they didn't know how to coordinate the behavior. But by the time things passed by and records are much better and much more accurate, all of the sudden what happens is allowing one person to bring the action on behalf of everybody eliminates the real multiplicity of law suits, and in effect is perfectly sensible because since you know what the cargo is, you're pretty clear what the principle for the distribution of the cash, once it comes as well. And so the system turns out to be relatively efficient. So what we've done in effect is we've tended to move away from the Roman rules, not because the problem of divided interest is irrelevant, but because it turns out that modern procedural devices are a little bit more flexible because we have a greater control over the system, and therefore are much more willing to deal with things in that particular fashion. PUBLIUS: At the beginning of this episode, you spoke about two categories of tort - theft and destruction. We’ve now covered theft, so let’s turn to the rules dealing with destruction of property. RICHARD EPSTEIN: The other half of the situation associated with torts is in effect in the problem associated with destruction of goods. There's relatively in Gaius's Institutes about this problem. And relatively little in Justinian's Institutes about this problem. But there is an exceptionally well organized chapter in Digest called Lex Aquilia or the Law of the Eagle which was passed in two eighty-seven that started to deal with this problem. And so the question is, how do you start to think about system of the destruction of property, which raises rather different issues from the problems of theft. And the first thing I want to ask is a very simple question of, do we begin in a legal system where there is a generic category of property, land, chattels, animals, and so forth, all are subject to uniform rules with respect to recovery. And it turns out that's fairly relevant in Roman time. The way in which the legal system early on developed when they put together these various causes of action, is you find the particular problem and then what you do is you patch up that particular problem and you didn't worry over much about generalization. So one of the previous actions underneath the lex aquila was the actio de pastu, and this was an action that was brought with respect to somebody who's animals grazed on somebody else's property, ate the corn and you had to basically figure out what to do for recovery. In an agricultural economy animals and agriculture are extremely important. And so the law of animals plays a very, very large part in the older system everywhere you look, and the tort law is no exception. Around 287 BCE, what happens is they happened is they passed the lex aquila and the term that Opine uses to describe its situation is that it derogates from all previous systems of law. And what does the word derogavit or to be derogate mean? And nobody is quite sure. But essentially the best guess is that the new statute comes in and it simply pushes to aside all of the particular statutes that deal with other kinds of question. And so what is the particular statute that we are talking about? It has two parts. One section, one which gets most of the analysis in the beginning is a section which says, "Whosoever," and that means just about anybody, "damages the slaves, male or female, or the herd animals, male or female, any other person to wit its owner shall be responsible for the highest value that those slaves or animals had within the previous year." And that's the entire sentence that they put out there. And it turns out say, 20 words long, and then 15,000 words later you figure out what it is that this kind of situation means. And how do you start dealing with this particular problem? Well, it's actually a very interesting kind of question, the way in which it works. Because if you look at the order that the Romans dealt with this subject, it seems very strange. First thing, what you do is you tend to talk about, well what's the slave, male or female, that's kind of understood. Then you have to figure out what kinds of animals are covered. Then there's this discussion, is it only animals that were subject to emancipation, or whether or not other animals like zebras can be covered as well. And you can easily see why you would the tort protection to be broader than the rules on formality because otherwise these animals are going to fall between the cracks and you'll get nothing for major losses. And so the tendency was not to read the two terms to mean the same thing. And then before we deal with anything else, what we do is we talk about the justifications, most notably self defense and so forth for killing. And then we talk about the causation of harm in a variety of cases. Then we talk about who is an owner. Then we talk about what these damages are. And you know, nobody in their right mind starts to think that this is a logical order of exposition. So I asked the students, "How does this come about?" And I said, “This is a case that you could read the English until your eyes glaze over and you'll beget an answer to the question, because the Romans were not deep theorists. They were just very good sort of intuitive judgment. And the way in which they approached the particular problem was not the way in which we would approach it. They went through each of the keywords in the sentence that I quoted in order and what they then did is they explicated them in the order in which they occurred." So the word, injuria, meaning unlawful appears before the word occidere meaning to kill. So they talk about the justifications before they talk about the question of what causation and killing turn out to be. And this is silly in the sense of trying to get an ordinary exposition of the case. But what do we mean by the term occidere is essentially the causation issue in this particular case. And this is the way in which the general situation goes. What you do if you're dealing with Roman Law is you start with easy cases. And then by analogical extension you try to deal with more difficult cases that arise. And this theory of causation essentially commits you to the following protocol. Which is you start from the particular accident or harm and then you work back in time to those causes which are essentially are responsible for the creation of what's happening. So, the causal connections are enormously tied. This then gets carried over in Anglo-American Law where the principle of a trespass is the direct application of force by one person to another. It doesn't necessarily have to result in a killing. Under Anglo-American law, you can wound an animal, right, or you could break the bars or something or other, but it turns out that the use of force is to touch down to the system, and now far from worrying about the metaphysics of causation, the tightness of the connection gets rid of all of these doubts. NARRATOR: Thank you for listening to this episode in the Roman Law unit of the No. 86 lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for more lectures and videos on Property, Contracts, and the Common Law. Thanks for listening. See you in class!