INTRODUCTION

The preoccupation with the lex Aquilia that has characterised much of anglophone Roman law scholarship in recent decades might leave the bemused onlooker wondering what there could possibly be left to say. If the centuries of rigorous exegesis at the hands of dedicated Romanists, who doubtless had greater sensitivity for the nuances of the Latin texts than any lawyer working on Roman sources today, have failed to exhaust the Digest's mysteries, perhaps they are destined to rest unsolved. But this would downplay the importance of methodology and its development in Roman law scholarship. Although the same texts have been subjected to countless scrutineering interpretations, the way in which a given mind approaches a source can have a profound effect on the outcome of each analysis. For much of modernity the focus of Romanist scholarship has been on the identification of the ‘truth’ of the text, on the assumption that the Byzantine compilers of the sixth century through obfuscation or manipulation warped the message of classical law, in a sense mirroring the humanist endeavours of fifteenth-and sixteenth-century jurists. Though intellectually impressive, there is an inherent risk in such a method of twisting the source material to suit one's own argument. It is only in recent years that the approach of Romanist scholarship has snapped back to something reminiscent of the mos italicus of medieval Europe. Though we do not approach the sources of the Corpus Iuris Civilis with the same quasi-religious respect of those jurists, we are more willing than our immediate predecessors to take the texts at face value. On the supposition of textual authenticity, unless confronted with undeniable anachronism or linguistic implausibility, can we make sense of the source material? A return to this methodology, of explaining rather than editing, has encouraged a new generation of Roman lawyers to approach the sources with fresh eyes, and to dream up novel solutions to old problems.

To illustrate the impact of this shift in methodology, this chapter will consider an old chestnut: damages under Chapter 1 of the lex Aquilia, and in particular the differing views of Julian and Ulpian in D.9.2.23.1.