Paul J du Plessis (ed), Wrongful Damage to Property in Roman Law: British Perspectives

DOI10.3366/elr.2020.0623
Pages171-174
Date01 January 2020
Published date01 January 2020

During the five-hundred or so years of the Roman Republic, scholars know of roughly twenty, seemingly important, statutes that relate broadly to matters of private law. Of these statutes, Roman lawyers are likely to be especially familiar with one: the lex Aquilia. Passed by the concilium plebis, or council of plebeians in c 287 BC, the lex Aquilia established an essentially civil basis of liability in the early Roman law of delict. Its concern was with damnum iniuria datum, or wrongful damage to property, with human slaves and herd animals treated as proprietary equals. The contours of so-called “Aquilian liability” are sketched out in the Institutes of the classical jurist Gaius (c 170 AD), and were elaborated more fully by the emperor Justinian's compilers (c 530–33 AD). To these sources, lawyers from both the Common Law and Civilian traditions have traced the genesis of modern delictual/tortious liability. The chief characteristics of this form of civil responsibility involve a causal link between what the wrongful actor did and what the victim lost; a concern for the wrongdoer's blameworthiness (or “culpa”); and the grounding of the victim's monetary relief on a backward-looking, essentially compensatory measure.

What more, one might ask, remains to be said about this Roman relic? This new collection of essays on the Aquilian delict is not a presentation of Roman legal scholarship in the conventional sense. Indeed, in surprisingly large tracts, they produce little by way of legal-historical reconstruction, at least in the orthodox understanding of the “history of (Roman) law”. The substantive text of the lex Aquilia, its historical context, as well as its later interpretation – by ancients, moderns, and intermediates alike – are not their main focus. Together, they signal a redirection towards greater disciplinary self-criticism in contemporary Roman law scholarship. They are bound together by the following question: why “our” fascination with the lex Aquilia?

By “our”, many of the contributors – including both neophyte and veteran Romanists – have in mind the British legal professoriate that emerged in the mid-to-late nineteenth century. Although steeped in the historical wisdom of the English Common Law, increasingly, these British academic lawyers saw Roman legal antecedents as harbouring the potential to enrich their scholarly and didactic vision. Rather than becoming more fervent in their idolatry, the contributors to this volume adopt a...

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