Remarks to the Civil Justice Reform Study Group on April 20, 2010 By Rep. Paul Stam, North Carolina House Republican Leader
I hate joint liability. By joint liability I mean making a person possibly pay all the damages when that person was only partially at fault. Excluded from this discussion of joint liability is a case where two people are consciously acting together.
Issues of joint liability or vicarious liability have been around for a long time. Let’s start at about 5,000 years ago with the Code of Hammurabi from Mesopotamia.
“If a builder build a house for someone, and does not construct it properly, and the house which he built fall in and kill its owner, then that builder shall be put to death (Sec. 229)”
“If it kill the son of the owner the son of that builder shall be put to death (Sec. 230)”
“If it kill a slave of the owner, then he shall pay slave for slave to the owner of the house (Sect. 231)”
Hammurabi was engaged in tort reform, but failed to remember justice.
Some think that the Mosaic law “evolved” from the Code of Hammurabi. I think that is nonsense. While some of the subjects of the Mosaic law are understandably the same, in many instances the Mosaic law is an emphatic rejection of the Code of Hammurabi. For example Deuteronomy 24:16 repudiates the sections quoted above: “Fathers shall not be put to death for the sons nor shall sons be put to death for their fathers. Everyone shall be put to death for his own sins.”
At Nuremberg Count Three of the Indictment charging War Crimes included this specification:
“(F) The Exaction of Collective Penalties – The Germans pursued a systematic policy of inflicting, in all the occupied countries, collective penalties, pecuniary and otherwise, upon the population for acts of individuals for which it could not be regarded as collectively responsible; this was done at many places, including Oslo, Stavanger, Trondheim, and Rogaland.”
Similar instances occurred in France, among others in Dijon, Nantes, and as regards the Jewish population in the occupied territories. The total amount of fines imposed on French communities add up to 1,157,179,484 francs made up as follows:
A fine on the Jewish population 1,000,000,000
Various fines 157,179,484
“These acts violated Article 50, Hague Regulations, 1907, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed and Article 6(b) of the Charter.”
Through the ages bad people have wanted to be reimbursed in full even when they cannot find the real culprit.
Justinian had codified (through Trebonius and Corpus Juris Civilis – 529 AD) the Mosaic law on this subject in Institutionum Sive Elementorum. The very first title of the first book states:
“Iustitia est constans et perpetua voluntas ius suum cuique tribuens. Iurisprudentia est diuinarum atque humanarum rerum notitia, justi atque iniusti scientia.”
“Justice is the constant and perpetual wish to render everyone his due. Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust.”
In latin “scientia,” from which we presumably obtain the word “science” was then used as a term to distinguish justice from injustice.
“The maxims of law are these: to live honesty, to hurt no one, to give everyone his
due.”
Since about 529 A.D. in this Corpus Juris Civilis, (with Tribonium as the editor and Ulpian as the source), Emperor Justinian thus codified the learning of the Roman World.
This phrase from Corpus Juris Civilis is the first principal of justice – that the goal is that each individual be treated as an individual and not as part of a group.
Dietrich Bonhoeffer in his Ethics noted:
“The most general formulation of rights given with the natural is, in the words of Roman law, suum cuique, to each his own.”
But in a footnote Bonhoeffer noted the irony that in the Third Reich this phrase, “to each his own” is translated in German “Jedem das Seine” and was part of the wrought-iron inscription on the gate of the Buchenwald concentration camp.
Those who wish to distort justice need to deal with the innate knowledge of all people that treating individuals as a group is wrong.
This was not just known in the Eastern Roman Empire. The Spanish epic work of Las Siete Partidas, (The Seven Parts) Part 3, Title One, Law III:
“What Justice Means, and How Many Precepts She Has.
According to the precepts of the ancient sages justice means something in which are included all rights of every description whatsoever. The commands of justice and law are three in number; first, that every man should live honestly, so far as he himself is concerned; second, that he should not do wrong or injury to another; third, that he should give to each one that to which he is entitled. He who complies with these precepts performs his duty to God, to himself and to the men with whom he lives, and renders and maintains justice.”
This principle passed from Roman law through the Middle Ages and has been adopted as the motto of the North Carolina Supreme Court. The question arises whether the North Carolina Supreme Court adopted “cuique suum tribuere” from Justinian, or directly from Revelation 22:12:
“Behold I come quickly and my reward is with me, to render to every man according to what he has done.”
In a lecture by Russell Kirk (1993 Heritage Foundation Lecture #457) the preeminent philosopher of conservatism elaborates. “This is a species of “distributive justice” as in the Book of Romans:
“Render to all their dues; tribute to whom tribute is due, custom to whom custom, fear to whom fear, honor to whom honor, owe no man anything but to love one another.”
Russell Kirk tells us that this Christian concept of justice (which came through Moses) comes to us through Plato, Aristotle, Saint Ambrose and Saint Augustine of Hippo and notes that Aristotle gave a specific slant on it:
We know it is unjust to treat equal things unequally. But it is also unjust to treat unequal things equally.
Application: North Carolina has doctrines in tort of joint and several liability – that is all those who help cause the harm are jointly liable for it all. So if the main culprit, the one who is 90% at fault, can’t pay, (he is insolvent or has flown the coop), the one who is 10% at fault gets to pay all the damages. This is unjust and wrong. Reminds me of Babylon or of Oslo.
Note: This is not a verbatim recount but by memory, and as revised for clarity.
