INTRODUCTION

When the compilers of Justinian's Digest in the sixth century CE reflected on the origins of Roman law as a legal order, they decided that the topic was of such importance that it had to be placed at the very front of the Digest, in book 1 title 2, directly after the introductory title in which central concepts such as ‘justice’ and ‘law’ were explained. In compiling this title, they relied on the works of two Roman jurists. The first, the enigmatic Gaius, a jurist of the mid-second century CE who, in a book (now lost) on the Twelve Tables (lex Duodecim Tabularum), wrote: ‘Since I am aiming to give an interpretation of the ancient laws, I have concluded that I must trace the law of the Roman people from the very beginning of their city. This is not because I like making excessively wordy commentaries, but because I can see that in every subject a perfect job is one whose parts hang together properly.’ While there is no doubt some Greek philosophy latent in this statement, it is not the main focus of our discussion here. For us, as for Gaius, it is important to stress that origins matter. No subject can be understood properly without a fundamental appreciation of its history. This fundamental principle is one the Romans understood only too well and, in this time of ‘presentism’, has become more important than ever.

But the compilers did not rely solely on Gaius’ book on the Twelve Tables. We do not know why. Instead, they chose to populate the rest of the title with a long passage from Pomponius’ Enchiridion (Manual). Much has been written about this account of the history of Roman law, written by a Roman jurist who lived during the reign of Marcus Aurelius. As the only comprehensive narrative concerning the development of Roman law, it has become a cornerstone for subsequent understanding of the nature and contours of the Roman legal order. And although not unproblematic, given the absence of corroborating evidence, it has left an enduring imprint – it is, for example, central to Edward Gibbon's account of Roman law in his seminal Decline and Fall.

Roman legal texts on the lex Aquilia teem with life. This is no doubt one of the reasons why the topic of wrongful damage to property has had such a profound impact upon the legal landscape of Roman law in the United Kingdom. Students and teachers like cases and the Roman legal texts provide ample fodder for detailed analytical discussions of the elements of a civil wrong. But it is not merely the attractiveness of the cases that has cemented the place of the lex Aquilia in the legal landscape of Roman law in the United Kingdom. This association goes far deeper than that. In fact, the lex Aquilia reveals the very DNA of Roman law studies in the United Kingdom.

In this volume, a group of established and younger scholars of Roman law were asked to reflect upon this topic. Their task was to examine the impact which the teaching of and research into this area of the Roman law of delict has had on the discipline of Roman law in the United Kingdom during the course of the twentieth century. The aim of this investigation has been to assess the extent to which the lex Aquilia may be used to draw larger conclusions about the nature of Roman law in the United Kingdom as an academic discipline.

The chapters by Cairns, Ibbetson, Mitchell and Spagnolo provide the contexts in which the lex Aquilia in Britain should be viewed. As Cairns shows, the teaching of this aspect of the Roman law of delict must be seen against the backdrop of changes to university education during the course of the nineteenth century. Furthermore, the relationship between the exegetical mode of teaching (using Roman law texts) and a desire by university authorities to equip students with a knowledge of juristic reasoning and intellectual techniques are vital to our understanding of this topic. To this must be added the availability of teaching material such as the translations and commentaries of Monro. Cairns’ comments about the relationships between the British methods of teaching this topic and their engagement with the Pandectist exposition of settled doctrine is well worth noting (a point to which I will return later).

Few topics have had a more profound impact on the study of Roman law in Britain than the lex Aquilia, a Roman statute enacted c. 287/286 BCE to reform the law on wrongful damage to property. Writing an article on this topic has become a proverbial rite of passage for nearly all British Romanists. A brief survey of modern Roman law literature demonstrates that British Romanists have made a substantial contribution to the study of this topic. The relevant titles in Justinian's compilation have been translated into English more than once and, judging by recent Festschriften for Alan Rodger and Boudewijn Sirks, the lex Aquilia continues to be studied in great depth by a number of British Romanists. And yet, the British fascination with the lex Aquilia is not immediately apparent to anyone outside these circles, nor has it been explored systematically.

The aim of this volume is to investigate the reasons for the peculiarly British fixation with wrongful damage to property in Roman law against the backdrop of the teaching of Roman law in Britain during the last century. This necessarily involves an investigation of certain broader themes. First, the significance of the lex Aquilia for the Oxford, Cambridge and Edinburgh legal curricula (as an ever-present topic in the advanced course in Roman law at all these universities) will be assessed. Within this theme, specific topics such as how the subject was taught, what materials were used and what impact the teaching of this topic had on subsequent generations of legal academics who studied at these universities (even if they did not proceed to further study and specialisation in Roman law – since the lex Aquilia clearly also had an impact on legal scholars working on modern tort/delict) will be investigated.

In second place, and related to the first (especially the issue of teaching materials), the impact of Frederick Henry Lawson's work on tort liability will be contextualised. This work, first published in 1950 and appearing in a number of subsequent editions, not only contained a thorough exposition of law in subsequent periods of European legal development, but undoubtedly also exercised a significant influence upon the teaching of wrongful damage to property in Roman law in the above-mentioned universities.