The essence of the libertarian notion of aggression and self-ownership — see On the Core Principles of Libertarian Property Rights. See, on this, the Roman law doctrine of “Corpore Corpori,” or “To the body”. AI summary:
In the context of Roman law, “corpore corpore” is a Latin phrase meaning “by the body to the body.” It refers to the requirement in the first chapter of the Lex Aquilia, a law dealing with damage to property, that the damage had to be inflicted by direct physical force. Specifically, the damage had to be caused by the wrongdoer’s body acting directly on the body of the injured thing.
From Wikipedia:
The lex Aquilia was a Roman law which provided compensation to the owners of property injured by someone’s fault, set in the 3rd century BC, in the Roman Republic. This law protected Roman citizens from some forms of theft, vandalism, and destruction of property. … The statute was in its terms rather narrow. For instance, the first chapter only applied where the killing had taken place directly (corpori corpore: on the body of the victim by the body of the perpetrator). It gave a remedy only to a citizen. It gave a remedy only to the strict legal owner (dominus) not to people with lesser rights of ownership. However, if an act was not directly caused or the damage inflicted a loss on someone other than the owner, an in factum action could be brought against the person who inflicted damage. (Lex Aquilia, Wikipedia)
For a parallel to a Roman law requirement in contract law of physical transfer, see Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 9, n.41:
The theory for transferring property advocated herein bears a conceptual resemblance to the common-law practice of “quitclaiming” and also to the Roman law doctrine of “traditio.” Traditio was a legal mechanism used to transfer ownership of certain types of things (res nec mancipi) by physically transferring possession or control of the thing, coupled with intent to transfer. 1
See:
Richard A. Epstein, “A Common Lawyer Looks at Constitutional Interpretation,” 72 Boston U. L. Rev. 699, 704 (1992), at p. 705 (on the Lex Aquilia), and pp. 708–709:
The stakes in this shift in approach are of course very high. Romans, as readers of Robert Graves’s I, Claudius would attest, seem to have had an inordinate fondness for killing by poisoning. In the crude cases, the poison was forced down the throat of the hapless victim. That was solemnly held to be a case of occidere, even though no cutting and tugging occurred. In many cases, however, the poisoning took place by means more subtle and effective. The perpetrators deceived the victim who ingested the poison believing it to be medicine. Because no case of occidere occurred here, the in factum mode allowed the action. One can only reach that conclusion by inserting an implicit premise, done by way of interpretation, that acts of the plaintiff induced by the defendant’s deception should be regarded as equivalent in law to actions that the defendant himself performed corpore corpori, by the body and to the body.
Barry Nicholas, An Introduction to Roman Law, rev. ed. (Oxford University Press, 1962):
Essential elements of the delict. From these provisions the essential elements of the delict emerge. The act must be a direct application of force. (This is plainly implicit in the words ‘burn, break, or smash’ and, perhaps less obviously, in ‘kill’.)
Damnum iniuria datum (Wikipedia):
The rule so understood was expressed in the words that it must be “corpori corpore“, by the wrongdoer’s body to that of the injured thing.
Doris Jonas, “Some Light on the Roman Law of Legal Liability,” Baylor Law Review 6, no. 4 (Summer 1954): 431-456, p. 436:
The law of the Lex Aquilia, plus extensions thereof, as set forth in the INSTITUTES OI JUSTINIAN, 2 6 was as follows: 1. An action on the Lex was given for damage done by the body of the wrongdoer to the body of the injured thing (corpore corpori), i.e., a trespass at common law.
Britiffe C. Skottowe, “The Roman Law of Damage” [1884] 10:1 Law Mag & L Rev 5th ser 47:
Producing death by the use of a sword, a club, a javelin or any other weapon , the hands, feet, or any part of the human body, by unskilfulness, culpable weakness, carelessness, negligence, or in fact any way, will come under the general expression ” killing” (occiderit), provided it is done corpore corpori. [60]
R. W. M. Dias, “Obscurities in the Development of Damnum,” [1958] 1958 Acta Juridica 203, p. 205:
Doubt also surrounds another possible development. How far was the Aquilian action made to cover damnum where no physical object was injured? Justinian’s Institutes, 4.3.16, suggests that the actio directa lay where the injury was inflicted by the body to the thing, corpore corpori; the actio utilis lay where the injury was to the thing but not by the body, corpori non corpore; and the actio in factum lay where no injury was done to the thing or by the body nec corpore nec corpori, that is, where the loss was non-physical or purely ‘pecuniary.’ This last action is the one that concerns us, and several points need to be discussed in regard to it.
(a) Justinian’s demarcation of the province of the actio utilis and the actio in factum does not represent classical terminology. Gaius in his Institutes, 3.219,
said only that the action under the Lex lay where the harm was inflicted directly
by the body, corpore, and that an actio utilis lay where it was not. Also, a good many classical texts do not bear out Justinian’s distinction – D. 9.2.7.3, 9.2.7.6, 9.2.9.2, 9.2.9.3, 9.2.11.1, 9.2.27.35, 9.2.53, all of which are cases of injury sustained by the thing but not directly inflicted by the body, corpori non corpore …
R. W. M. Dias, “The Duty Problem in Negligence,” Cambridge Law Journal 13, no. 2, (November 1955): 198-214, p. 206:
The methods of inflicting harm, too, were limited. As in the English action of trespass the injury had to be inflicted directly, by the body to the body, corpore corpori, but the Aquilian may have been narrower than even this. D. 9.2.7.1 shows that originally death had to be inflicted manually, or at least with a weapon held in the hand, and if we accept occidere literally as meaning “cutting down” it was very narrow indeed.
Lujo Margetic, “Some Notes on the Farmer’s Law, an Important Link in the Evolution of Roman-Byzantine Law,” Zbornik Pravnog Fakulteta Sveucilista u Rijeci 20, no. 1 (1999): 227-232, p, 228:
Let us take as an example the problem of the compensation of damages. In the
Roman Law there existed no general rule concerning the compensation of damages; instead, it was disciplined by the statutes of extremely limited extent. Among them, the most important was, beyond doubt, Lex Aquilia from 286 B. C. Its wording had compelled many Roman jurists to assert that the responsibility for damages existed only if the damage had been done directly (corpore) and effectively (corpori). Nevertheless, some classic jurists thought that Lex Aquilia had to be applied also in the case of indirect damage. Justinian, allowed actio directa only if the damage was done corpore, while in other cases he envisaged actio utilis (i.e. if there was no direct damage, e.g. if someone closed another’s animal in his pen and it died for lack of water and food) as well actio in factum (if the damage was made neither corpore nor corpori, e.g. if somebody liberated another person’s slave out of pity or threw another’s ring into river). It is only the Byzantine Law which constructed the concept of actio generalis in factum …, understood as a derivation from Lex Aquilia.
F.H. Lawson, “Duty of Care in Negligence: A Comparative Study,” Tulane Law Review 22, no. 1 (1947-1948): 111-130, p. 113:
But it must be remembered that the Lex Aquilia itself limited liability very strictly to killing and to damage done by a person who usserit, ruperit, fregerit, that is, burnt or broke the thing in question; and the jurists, though they enlarged the meaning of ruperit to include any spoiling (corruperit), insisted that the damage must have been done corpore corpori, that is, there must have been physical damage to the thing, and a physical contact between it and the defendant.
- From the footnote: See, e.g., W.W. Buckland, A Text Book of Roman Law from Augustus to Justinian, 3d ed. rev’d by Peter Stein, reprint with corrections (Cambridge University Press, 1975), at LXXXIII, pp. 226–27; also Gaius, Institutes of Roman Law, with a translation and commentary by Edward Poste, 4th ed., revised and enlarged by E.A. Whittuck (Oxford: 1904), Book II, §19 (p. 133), §§ 24–26 (pp. 136–39), §§ 40–41 (p. 153), §65 (p. 164), and §95 (p. 174); and Alan Watson, Failures of the Legal Imagination (University of Pennsylvania Press, 1988), p. 90 et pass. (For a brief discussion of the concept of “thing” in the civil and Roman law, see “What Libertarianism Is” (ch. 2), Appendix I.) [↩]
