Dating the lex Aquilia
No palimpsest has as yet (like a deus ex machina) yielded a solution to the other disputes and uncertainties enveloping the early history of the lex Aquilia. To start with, unanimity does not even exist among modern scholars as to the date of its enactment; and any attempt to establish its policy background, the specific reason why or the occasion when the lex Aquilia was proposed, leads us inevitably even further into the field of speculation.
A fairly strong body of opinion favours either the year 287 or 286 B.C. as the date of origin.[4926] [4927] This view is based mainly on a passage in Theophilus' paraphrase of Justinian's Institutes,™ where the lex Aquilia is connected with the so-called third secession of the plebs (to the mons laniculus); it is thus indirectly connected, too, with the passing of the lex Hortensia, which provided that plebiscites should have full binding force for the whole Roman people, plebs and patricians alike ("... qua cautum est ut plebiscita univer sum populum tenerent").[4928] The lex Aquilia may thus have been one of the very first plebiscita enacted as a consequence of the lex Hortensia. On the other hand, however, it must be taken into consideration that Theophilus wrote more than 800 years after the (alleged) event and that, furthermore, he mentions the origin of the lex quite incidentally, when dealing with the absence of the word "plurimi" from the third chapter of the lex.[4929] [4930] Being a busy Dean of the Constantinople law faculty, he may neither have had the time nor the interest to research thoroughly a historical detail that was hardly relevant for the purpose of his exposition.[4931] He probably merely took over what he found in some source or other, which we, in turn, are no longer able to check. Whether or not he went even further (as Honore suspects)[4932] and blended various scraps of information, by a free association of ideas, into what appeared to him a plausible story:[4933] his account can certainly not be regarded as incontestable authority for placing an exact date on the lex Aquilia. Nor, incidentally, does it provide a dependable basis for establishing the context within which the lex Aquilia originated. Beinart's view that the lex was introduced as a result of the disturbances preceding or accompanying the (third) secessio plebis[4934] has therefore not found much support.[4935]Equally little support has, however, been attracted by Tony Honore for his all too radical departure from the chronological framework suggested by the Byzantine sources. In his view,[4936] the lex Aquilia was part of a legislative programme to ensure the preservation of property rights. Its main point was to substitute for the fixed penalties of the earlier law a more flexible and equitable assessment of the damages suffered by the victim of the wrong. Fixed penalties were acceptable as long as the value of the currency was stable. It was the second Punic war that brought about the first serious inflation and within a short period the weight of the "as"[4937] was substantially reduced.[4938] In this situation, according to Honore, the lex Aquilia was necessary to protect the propertied classes against the effects of inflation. As a result, he suggests a date between about 209 and 195 B.C.[4939] But this kind of argument provides at best plausibility, not proof.[4940] Considering the economic context at the turn of the century, it is unlikely that the Romans still operated with fixed penalties; thus, one may perhaps deduce that the lex Aquilia could in any event hardly have been introduced at a later date. Nothing, however, compels one to believe that the Romans could not have found the transition from a fixed penalty to some kind of assessment of the actual damages convenient, or perhaps even necessary, at an earlier period.
Most probably, the lex Aquilia was younger than the lex Hortensia;[4941] by the middle of the 2nd century, on the other hand, it must already have been in force for quite a considerable period, for it would otherwise be surprising to find Marcus lunius Brutus advocating, without further ado, an extensive application of one of the terms used in the third chapter.[4942] Within the framework set by these dates, stylistic and linguistic arguments point to the first rather than the second half of the 3rd century. [4943] This coincides roughly with the period suggested by the Byzantine sources;[4944] and while certain details may over the centuries have got muddled, or may perhaps even have been conjured up,[4945] it is unlikely that Theophilus should either have tried to mislead his readers or should himself have been completely misled by his sources as to—roughly—the period when the lex Aquilia was enacted. After all, at least up to the time of Ulpian, the history of this enactment appears to have been known:[4946] hardly surprising if one considers its significance.
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More on the topic Dating the lex Aquilia:
- The text of the lex Aquilia
- The composition of the lex Aquilia
- CHAPTER 29 Lex Aquilia 1
- I. ORIGIN AND CONTENT OF THE LEX AQUILIA
- DATING
- The lex Cincia de muneribus
- Lex commissoria
- Statutory relief for non-Romans: the lex Calpurnia
- The lex Sancimus (C. 7, 47, 1)
- Lex Rhodia de iactu
- 1. Aequitas naturalis and the lex Si et me et Titium
- Condition, lex commissoria and rescission in South African law
- We have now sketched the framework within which to appreciate how the Roman jurists applied and interpreted the individual requirements for condemnation in terms of the lex Aquiiia.