Eric Descheemaeker joined the School of Law in 2011. Prior to taking up his appointment in Edinburgh, he was Fellow and Tutor in Law at St Catherine’s College, University of Oxford (2004-09) and then Lecturer in Law at the University of Bristol (2008-11). His research interests lie in the law of obligations – in particular civil wrongs (delict/tort) – with an emphasis on historical and comparative dimensions; and he welcomes enquiries from prospective students interested in working in this area.
At Edinburgh, Eric is involved in the teaching of the LL.M. courses on Delict and Tort, Comparative Unjustified Enrichment and Anatomy of Private Law, as well the Honours courses on Delictual Liability and European Legal History, and the Ordinary/Honours Civil Law courses. He also directs the LL.M. in Comparative and European Private Law, starting in 2011-12.
His first book was published in 2009 by Oxford University Press under the title The Division of Wrongs: A Historical Comparative Study, and concerned itself with some structural issues within the law of civil wrongs in the Romanist tradition and in English law. It was shortlisted for the 2010 Birks prize for outstanding legal scholarship by the Society of Legal Scholars.
His main current research project concerns the relationship of the Roman delict of iniuria with the protection of personality rights in the modern law of England and mixed jurisdictions (in particular Scotland and South Africa). He is presently working on a second monograph, entitled “Reconstructing the Law of Defamation”, which seeks to recapture the English model of defamation as injury to deserved reputation, in contradistinction with the Romanist model of defamation as insult pertaining to reputation. He was awarded a Leverhulme Research Fellowship for this work.
Eric was educated at the Universities of Paris, Berlin and London, before going up to Oxford in 2001 to read for the D.Phil. He wrote his dissertation under the late Peter Birks.
The common law, despite procedural divisions, has only ever had one class of civil wrongs. The civilians, by contrast, have typically split their law of wrongs in two, one group being called ‘delicts’ and the other ‘quasi-delicts’. Yet this division, which originated in Roman law, remains mysterious: it is clear neither where the line was drawn nor why a separation was made along this line.
This book does two things. In the first two parts, it investigates the origins of the division and its development in a modern civilian jurisdiction, France. What is argued for is that the Roman dichotomy was originally one between fault (culpa)-based and situational liability, which was prompted by a historical contraction of the Roman concept of a wrong (delictum). French law, building on medieval interpretations of the division, redrew the line one level higher, between deliberate and negligent wrongdoing. By doing so, it involved itself in severe taxonomical difficulties, which the book explores.
The third part of the work concerns itself with the significance of the civilian division of wrongs according to degrees of blameworthiness (dolus, culpa, casus) for the common law. A rather provocative thesis is developed, in effect, that there is a strong case for the adoption of a similar trichotomy as the first-level division of the English law of civil wrongs. From its formulary age, English law has inherited an unstable taxonomy where wrongs intersect. The existence of these mismatched categories continues to cause significant difficulties, which a realignment of causes of action along the above lines would allow to sort out.
Journal Articles
Eric Descheemaeker '"Veritas non est defamatio"? Truth as a Defence in the Law of Defamation' (2011) Legal Studies 1-20
Despite the limited exception introduced by statute in 1974, the principle that truth is and ought to be a complete defence to all actions in defamation is typically regarded as self-evident in modern English law. The fact that England stands here against not only the whole of the civilian tradition but also a number of common-law jurisdictions suggests, however, that it is not. This article, after surveying the history of the principle in English law and the debates that it has spurred in the past, argues that English law is right on this question, but needs to understand more cogently why. This, in turn, requires an examination of the interests protected by the cause of action. It is only if we accept that it is, and is solely, reputation founded in character that the defence of veritas will be secured.
Eric Descheemaeker '"A man of bad character has not so much to lose": Truth as a Defence in the South African Law of Defamation' (2011) South African Law Journal 452-78
This paper examines, from a historical and comparative perspective, the role of truth in the South African law of defamation. In order to understand to what extent the law of South Africa might represent a mixture of civilian and common-law thinking, it first sets out the viewpoint of, on the one hand, Roman and Roman-Dutch law and, on the other hand, English law. Against this background, the dominant position of South African law appears avowedly civilian, a stand explained by the fact that the South African law of defamation really is a law of verbal insults, as in Rome, rather than a law of injuries to deserved reputation, as in England. However, an interesting dissident strand in favour of the sufficiency of truth can be seen to exist in the background, which is explored. This dissenting strand is certainly English in substance, but this does not entail that it has English roots.
Eric Descheemaeker 'Obligations quasi ex delicto and Strict Liability in Roman Law' (2010) Journal of Legal History 1-20
The meaning of the Gaian-Justinianic division of obligations arising from unlawful events into obligationes ex delicto and quasi ex delicto has long been a puzzle for Romanists. The strict liability theory, which understands “quasi-delicts” as examples of situational wrongs, defined independently of fault, was first aired in the 1940s but has never gained widespread support. The case of the iudex qui litem suam facit was regarded as a stumbling block for the theory. The present article aims to make a new and systematic case for strict liability as the basis of the quasi-delictal category and argues that, in the light of archaeological discoveries which have overhauled our understanding of the judge’s liability, we can now have a coherent picture of Roman quasi-delictal liability as liability even without fault.
Eric Descheemaeker 'La dualité des torts en droit français (délits, quasi-délits et la notion de faute)' (2010) Revue trimestrielle de droit civil 435-57
Le Code civil contient une faille structurelle : son chapitre 4.3.2 (« des délits et des quasi-délits ») est censé, par construction, se rapporter à la responsabilité fondée sur un délit ou un quasi-délit, c’est-à-dire, selon l’interprétation doctrinale unanime, un acte dommageable causé—sans droit—soit intentionnellement, soit négligemment. Pourtant, ce chapitre contient des faits générateur de responsabilité aussi bien non-coupables que coupables : le contenu ne correspond donc pas au contenant. Cet article examine à la fois la cause et l’une des conséquences de cette incapacité du Code à faire place à la responsabilité situationnelle, définie sans référence à la faute-culpa. La cause, c’est que le droit français moderne a réécrit la dichotomie romaine entre obligations ex delicto> et quasi ex delicto, lui faisant perdre son caractère exhaustif. La conséquence, c’est que la notion de faute a été soumise à une force centrifuge considérable, tendant à la vider de sa condition historique de culpa. Les effets de cette force sont visibles tant en doctrine que dans la jurisprudence.
Eric Descheemaeker 'Defamation Outside Reputation: Proposals for the Reform of English Law' (2010) Tort Law Review 133-9
The view that the wrong of defamation protects the interest in reputation, and nothing but that interest, is ordinarily taken for granted in modern English law. It is, however, incorrect. This paper gives four examples of ways in which the English law of defamation has strayed into the protection of other interests, in particular privacy, self-worth and wealth. They are: the supplementary tests of defamatoriness (the ridicule test and the ‘shun and avoid’ test); s. 8(5) of the Rehabilitation of Offenders Act 1974; the rule that slanders are not ordinarily actionable without proof of ‘special damage’; and, finally, the compensation of losses consequential upon the injury to reputation. It is argued that these are all unwarranted and ought to be reformed.
Eric Descheemaeker 'The Roman Division of Wrongs: A New Hypothesis' (2009) Roman Legal Tradition 1-23
This article examines the rationale of the Justinianic division of wrongs into delicts and “quasi-delicts”. Taking as its starting point the assumption that the distinction corresponded to that between fault (culpa)-based and situational liability, it hypothesizes that the quasi-delictal appendix arose after the time of Gaius’ Institutes from a contraction of the Roman concept of a civil wrong (delictum): its scope would have narrowed from an unlawful liability-creating act to a blameworthy such act, thereby rejecting outside of the delictal class proper instances of liability regardless of fault.
The present article concerns itself with the relationship between defamation and negligence in the protection of the interest in reputation. The bijection between defamation and reputation is typically thought of as perfect: defamation only protects reputation, while reputation is only protected by defamation. This article shows, however, that neither limb of the proposition is true; furthermore, there is no principled ground why they should be. In particular, there is no reason why the tort of negligence could not prima facie extend the scope of its protection to reputation. It might seem that the fact that negligence, as a tort, requires by construction culpa, whereas defamation appears to rely on either more or less than that as a standard of liability, would prove an insuperable stumbling-block in the way of this suggestion. The hurdle, however, is not nearly as formidable as it might appear at first, because, as this article documents, negligence has for more than a century been acting as a magnet on the law of defamation, surreptitiously bringing its standard of liability increasingly close to negligence-culpa.
Eric Descheemaeker 'La question de la fusion de la common law et de l'equity en droit anglais. A propos de l'ouvrage Equity de Sarah Worthington' (2007) Thémis 631-50
English judge-made law, like Roman law in its own time, is divided into strict law and equity. Today, this division can be described as hysteretic, insofar as it is based on now by-gone causes. The issue is therefore bound to arise, 130 years after their procedural fusion, of the substantive fusion (or integration) between these two bodies of law. The present shorter article follows up on Professor Worthington’s recent Equity, in which the writer advocated this option and, for the first time, attempted to flesh it out in a methodical fashion. It sets out to examine the taxonomical argument for fusion. Its gist is that the concept of equity, being defined procedurally rather than substantively, is an intruder within the modern English legal landscape, which is dominated by substance-based categories. This means that the only option for equity is to disappear as an autonomous legal category.
The four incumbents of the Oxford Regius Chair of Civil Law in the second half of the 20th century share one remarkable feature, namely, that they all are related to Otto Lenel, the German initiator of modern Roman law studies. The connection is twofold, both personal (through teacher-pupil relationships) and intellectual, in that they have received and developed Lenel’s project. This project can be described as the restoration of the primacy of procedure in Roman law, as well as the putting back in order of the Roman law library. Professors Beatson and Zimmermann’s recent Jurists Uprooted helped to unveil this connection. The present shorter article aims at expounding it in a more systematic way by exploring the background to this relationship, as well as the link between each of the incumbents (H. F. Jolowicz, David Daube, Tony Honoré, Peter Birks) and Otto Lenel.
One principal difference between the legal traditions of Scotland and England is that, while Scots lawyers have always been committed to a rational structure of the law, English lawyers have generally shown themselves indifferent to legal taxonomy. Nevertheless, Oxford’s Professor Birks has recently edited a treatise on English private law which in effect revives the long-standing Roman institutional scheme, thus ‘civilianising’ the common law and bringing it a step closer to Scots law, which has been relying on this map for centuries. This article sets out to evaluate the merits of his enterprise. To that effect, it primarily examines the triangular relationship between the taxonomies of Roman, English and Scots law.
Eric Descheemaeker 'Faut-il codifier le droit privé européen des contrats?' (2002) McGill Law Journal 791-853
Faut-il codifier le droit privé des contrats en Europe? La question, estime l’auteur, se décompose en trois sous-questions : Dans un premier temps, cette codification est-elle pensable, c’est-à-dire y a-t-il un sens à prétendre l’envisager? Ensuite est-elle souhaitable ? Et finalement est-elle faisable ? L’exigence de codification supposerait qu’il soit répondu par l’affirmative aux trois. Or, selon l’auteur, ce n’est pas le cas, car s’il est bien pensable de créer un instrument juridique commun à des pays relevant de traditions et d’épistémologies juridiques distinctes, notamment des droits romanistes et de common law, en revanche les arguments en faveur d’un tel projet lui semblent peser de poids face à ceux à son encontre, coûts et inutilité notamment. Surtout, l’idée d’«européaniser» le droit des contrats témoigne d’une certaine incompréhension de la nature du droit : en effet, non seulement il est impossible d’exprimer de manière uniforme une même norme dans plusieurs systèmes différents, surtout s’ils utilisent des langues distinctes, mais encore la dépendance à l’intérieur de chacun de ces système du droit des contrats par rapport aux autres branches du droit et à la science juridique nationale rend-elle la création d’un droit uniforme de la matière en Europe radicalement impossible.
Chapters
Eric Descheemaeker 'Fusionner droit strict et équité : aperçus sur le droit anglais de la responsabilité civile' in Denis Baranger (eds) L'équité et ses métamorphoses (Dalloz, 2011) 91-107
Eric Descheemaeker 'The Publications of Peter Birks (1969 – 2005)' in Andrew Burrows and Lord Rodger of Earlsferry (eds) Mapping the Law: Essays in Memory of Peter Birks (Oxford University Press, 2006) 641-51
reprinted (with correction) in R. B. Grantham and C. E. F. Rickett, Structure and Justification in Private Law. Essays for Peter Birks (Oxford, 2008), 441-52
Eric Descheemaeker 'Review of N. Whitty and R. Zimmermann (eds), Rights of Personality in Scots Law: A Comparative Perspective (Dundee, 2009)' (2010) Modern Law Review 898-902
Eric Descheemaeker 'Review of L. McNamara, Reputation and Defamation (Oxford, 2007)' (2010) Law Quarterly Review 642-4
Eric Descheemaeker 'Review of J. Cartwright, S. Vogenauer and S. Whittaker (eds), Reforming the French Law of Obligations. Comparative Reflections on the Avant-projet de réforme du droit des obligations et de la prescription (Oxford, 2009)' (2010) Modern Law Review 1086-9
Eric Descheemaeker 'Review of E. Schrage (ed), Negligence. The Comparative Legal History of the Law of Torts (Berlin, 2001)' (2004) Revue internationale de droit comparé 261-70
Eric Descheemaeker 'Review of D. Ibbetson, A Historical Introduction to the Law of Obligations (Oxford, 1999)' (2004) Revue internationale de droit comparé 1005-15
Eric Descheemaeker 'Review of G. Treitel, Some Landmarks of Twentieth Century Contract Law (Oxford, 2002)' (2003) Revue internationale de droit comparé 492-4
Eric Descheemaeker 'Review of I. Schwenzer and G. Hager (eds), Festschrift für Peter Schlechtriem zum 70. Geburtstag (Tübingen, 2003)' (2003) Revue internationale de droit comparé 1016-22
Eric Descheemaeker 'Review of R. Zimmermann, Roman Law, Contemporary Law, European Law. The Civilian Tradition Today (Oxford, 2001)' (2003) Revue internationale de droit comparé 1025-28
Eric Descheemaeker '‘A man of bad character has not so much to lose’: Truth as a defence in the South African law of defamation', School of Law Working Paper Series, 2011/39 (SSRN, 2011)
This paper examines, from a historical and comparative perspective, the role of truth in the South African law of defamation. In order to understand to what extent the law of South Africa might represent a mixture of civilian and common-law thinking, it first sets out the viewpoint of, on the one hand, Roman and Roman-Dutch law and, on the other hand, English law. Against this background, the dominant position of South African law appears avowedly civilian, a stand explained by the fact that the South African law of defamation really is a law of verbal insults, as in Rome, rather than a law of injuries to deserved reputation, as in England. However, an interesting dissident strand in favour of the sufficiency of truth can be seen to exist in the background, which is explored. This dissenting strand is certainly English in substance, but this does not entail that it has English roots.
Eric Descheemaeker 'Defamation Outside Reputation: Proposals for the reform of English law', School of Law Working Paper Series (SSRN, 2011)
The view that the wrong of defamation protects the interest in reputation, and nothing but that interest, is ordinarily taken for granted in modern English law. It is, however, incorrect. This paper gives four examples of ways in which the English law of defamation has strayed into the protection of other interests, in particular privacy, self-worth and wealth. They are: the supplementary tests of defamatoriness (the ridicule test and the ‘shun and avoid’ test); s. 8(5) of the Rehabilitation of Offenders Act 1974; the rule that slanders are not ordinarily actionable without proof of ‘special damage’; and, finally, the compensation of losses consequential upon the injury to reputation. It is argued that these are all unwarranted and ought to be reformed.
Papers and Presentations
Eric Descheemaeker 'Solatium in Roman and English Law' presented at Iniuria and the Common Law, All Souls College, University of Oxford, 2011
Eric Descheemaeker 'Rethinking Emotional Wellbeing in the Law of Wrongs' presented at Conference of the Society of Legal Scholars, Downing College, University of Cambridge, 2011
Eric Descheemaeker 'Quasi-contracts and Unjustified Enrichment in French Law: Some Comparative Remarks' presented at Conference of the Society of Legal Scholars, Downing College, University of Cambridge, 2011
Eric Descheemaeker 'Truth, Defamation and Verbal Injuries: South African Law at the Crossroads?' presented at Third International Congress of the World Society of Mixed Jurisdiction Jurists, Hebrew University of Jerusalem, 2011
Eric Descheemaeker 'The Dangers of Mixing It Up. Some Remarks on Defamation and Truth in Civilian, Common-law and Mixed Jurisdictions' presented at Conference of the Irish Society of Comparative Law, University College Dublin, 2011
Eric Descheemaeker 'Defamation and Truth: Two Models of Defamation' presented at Conference of the Society of Legal Scholars, University of Southampton, 2010
Eric Descheemaeker 'Some Historical and Comparative Remarks on the Roman Classification of Obligations from Wrongs' presented at Ex contractu, ex delicto. Conference on the history of the law of obligations, Jagiellonian University, Cracow, 2010
Eric Descheemaeker 'Dividing Wrongs: The Civilian Experience' presented at Civil Law Centre, University of Aberdeen, 2010
Eric Descheemaeker 'Dividing Wrongs: The Civilian Experience' presented at Edinburgh Roman Law Group, University of Edinburgh, 2010
Eric Descheemaeker '‘Veritas non est defamatio’? Truth as a Defence in the Law of Defamation' presented at Research Seminar Series, University of Bristol, 2009
Eric Descheemaeker 'Civiliser la common law. L’exemple de l’enrichissement sans cause' presented at Colloque sur “L’enseignement et la recherche en droit français au Royaume-Uni et en Irlande”, Maison Française d’Oxford, 2009
Eric Descheemaeker 'Protecting Reputation: Defamation and Negligence' presented at 100th Conference of the Society of Legal Scholars, University of Keele, 2009
Eric Descheemaeker 'Dividing Wrongs: The Civilian Experience' presented at 100th Conference of the Society of Legal Scholars, University of Keele, 2009
Eric Descheemaeker 'Dividing Wrongs: The Civilian Experience' presented at Comparative Law Discussion Group, Institute of European and Comparative Law, University of Oxford, 2009
Synopsis