Doctrinal History of the Protection of Personality Rights in Europe in the Ius Commune: General Actions or Specific Actions

John Blackie


This article explores the structure of the law protecting personality rights as developed in the ius commune. It adds a level of complexity to the models of the development of doctrine, by identifying and exploring the large number of sub-categories which were used by courts to focus particular types of personality right claims. The impact of these sub-categories is emphasised as that they affected the detailed working out of the law on the ground. The primary material which reveals this is a body of sixteenth and seventeenth century literature, and case law which, while consistent with doctrinal work of more systematic jurists, takes analysis to a more elaborate level of detail. The range of sub-categories considered includes: those which focus on seriousness of impact (as in cases of bodily injury); those which really derive their prominence from their treatment in particular Roman texts (as in deprivation of physical liberty); and those which reflect particular concerns of canonists (as with the protection of “secrets” and moral sexual relations). Just how these sub-categories relate to injuria is shown as being complex. The unified relationship of civil and penal law in the period is emphasised as cardinal. The use of sub-categories in the law of remedies is also considered. The picture that emerges reveals that the use of sub-categories in considering a range of personality rights infringements is not in itself surprising. The early modern European approach on the ground shows a diversity within unity in its doctrine.



Cite as: John Blackie, Doctrinal History of the Protection of Personality Rights in Europe in the Ius Commune: General Actions or Specific Actions, vol 13.1 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (March 2009), <http://www.ejcl.org/131/art131-1.pdf>.

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