1. Introduction
"Tituli praesentis usus amplissimus est, cum omnium damnorum reparatio ex hoc petatur, si modo ulla alterius culpa doceri possit": this is how Samuel Stryk123 introduced his discussion of the usus modernus legis Aquiliae.
Even in Roman law, the lex Aquilia had been extended, adapted and modernized in so many ways that a jurist from the time of [5291] [5292] its enactment would hardly have recognized the late classical (or Justinianic[5293]) delict of damnum culpa datum as specifically Aquilian; and any legal advice based merely on the wording of the lex would have been hopelessly inadequate. This process of extension, adaptation and modernization was carried on by courts and writers of the ius commune: almost imperceptibly at first, and with small and hesitating steps, but leading, eventually, to the far-ranging popular ("usus amplissimus")[5294] and comprehensive remedy described by Stryk. This transformation was, first and foremost, the work of legal practice.[5295] Very little of it can be gauged from the writings of glossators and commentators[5296] (nor, of course, from authors of the subsequent humanist school). Even many of the writers of the (Dutch and German) usus modernus were reluctant to deviate from Roman law. But by their time the transformation of the actio legis Aquiliae was so firmly entrenched in practice that further doctrinal resistance must have appeared rather futile. One by one the changes came to be accepted, or at least acknowledged: rather haltingly and not always very consistently, but in the end the "mores hodiernae" triumphed all along the line. Andjust as the Aquilian delict of the Corpus Juris Civilis was a far cry from the one contemplated by those who had, in the 3rd century B.C., set out to draft the lex Aquilia, so it had become manifest, by the end of the 17th century, that the modern law in action no longer reflected the Aquilian delict of the Corpus Juris. The famous enlightenment lawyer, Christian Thomasius, even argued that "actio nostra, qua utimur, ab actione legis Aquiliae magis differat, quam avis a quadrupede", and he thus decided to put an end to the kind of mummery that was going on. "Larva legis Aquiliae detracta actioni de damno dato"[5297] [5298] [5299] [5300] was the programmatic title of his polemical treatise: the Aquilian mask torn away from the action concerning damage done. What was the basis of his argument?2.
More on the topic 1. Introduction:
- Domingo Rafael. Roman Law: An Introduction. Routledge,2018. — 252 p., 2018
- Chapter 1 Introduction
- Introduction: Themes and Literature
- Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p., 1976
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