INTRODUCTION

This chapter examines some well-known texts on causation and remoteness of damage in relation to the lex Aquilia. It asks whether there is a distinctive British approach to the discussion of these texts and, if so, what it is. In doing so, it aims to contribute to the broad theme of this volume of identifying what is (or has over the last century or so been) characteristic of the British way of studying Roman law.

First impressions suggest that it is very difficult to isolate a distinctive British approach, and that the lines followed by British scholars are many and various. Take, by way of example, the work of the following five British Romanists. The work of David Daube is characterised by close analysis of the grammar, form and structure of legal utterances, and the palingenesia of juristic texts. Tony Honoré focuses on the linguistic usage of individual jurists and what that can tell us about when they composed their works. Peter Stein concentrated on the influence of grammar and rhetoric on the jurists’ analysis and development of legal institutions, as well as the characteristics of the two schools of classical jurists. Peter Birks emphasised the importance of procedure; and his work is also marked by frequent comparisons with the development of the common law. Alan Rodger's approach was similar to that of Daube, with particular emphasis on the palingenesia of juristic texts.

It therefore seems that the search for something distinctive or characteristic of the British Romanist must be at a different level. This chapter will look briefly at four topics within the general area of causation or remoteness of damage, focusing in each on one or more scholars and their approach.

BUCKLAND, CULPA COMPENSATION AND CONTRIBUTORY NEGLIGENCE

Both in his Text-book of Roman Law and in Roman Law and Common Law (and indeed in more or less the same words), Buckland attacked the notion of culpa compensation advanced among others by Alfred Pernice in his Zur Lehre von den Sachbeschädigungen nach römischen Rechte. Buckland described it as an invention into which these authors ‘have attempted to force the Roman texts’.

The issue is clearly illustrated in Ulpian's well-known text about javelin throwing.