1. Legal theory and mores hodiernae
All in all, I think, one can understand, perhaps even sympathize with, Thomasius' emphatic rejection of any link between the Roman lex Aquilia and the modern delict de damno dato.
Historically he was wrong, but under purely dogmatic auspices he certainly had a point. Though the enactment from the 3rd century b. c was still (in the terminology of Lauterbach) causa efficiens remota ex quo oritur actio,218 many new strands had been woven into it.219 The usus modernus of the Aquilian delict had absorbed Germanic customary law, some elements from canon law and medieval moral theology, but above all it had been shaped by the efforts of generations of judges and counsel: practical lawyers who made the lex Aquilia suit the needs of their time. It was thus part and parcel of a vigorous, yet flexible, jurisprudentia forensis. But the time was clearly ripe for a new theoretical framework. Contemporary tractatus, discursus, collegii and commentarii were still full of dogmatic ballast: distinctions between actiones in factum, utiles and directae, between occidere and causam mortis praebere, or between the computation of the interesse in chapter one and that prescribed in chapter three, litiscrescence and the problem of the penal nature or otherwise of the action, the requirement of corruptio rei and the principle of liberum corpus nullam recipit aestimationem — all this was more or less respectfully dragged along, but became increasingly overshadowed by the "mores hodiernae". Reference to the latter was all too often merely added, fairly abruptly, at the end of the respective section of the treatise. Legal theory had failed to provide a suitable doctrinal edifice to accommodate the law in action. This task was finally undertaken by the natural lawyers, and it was in fact the vitality of their ideas that inspired Thomasius to "pull down the Aquilian mask".220*ls Collegium tlieoretico-praaicum.
Lib. IX. Tit. II. Ill and II.Cf.. once again, in particular Feenstra. fata iuris romani, pp. 323 sqq.; also Thomasius. op. cit., note 128, § LI and passim.
20 He tried to show not only that the actio hodierna was entirely different from the actio legis Aquiliae, but also that it corresponded to the precepts juris naturae vel gentium. Characteristic is the following passage: "Cum... convenifat] hac parte Canonicum jus cum aequitate naturali & moribus Gentium, sane in tantum se commendavit hac parte Jus Canonicum Germanis ut duritiam morum proprium ad aequitatem Juris Canonici reducerunt: Quo facto plane nun fuerunt apti, ut introducto, integro seculo post Jus Canonicum, Jure Justinianeo in Academias Germanise, relicia hac parte Juris Canonici aequitate, recipere potuerint irregularem illam et omni ratione destitutam duritiam legis Aquiliae" (§ LI).
On Thomasius' views on the relationship between ius civile and ius canonicum in general, see Wolter, Ius canonicum in hire civili, pp. 161 sqq.; on his natural-law theory, cf. Hinrich Ruping, Die Naturrechtslehre des Christian Thomasius und ihre Fortbildung in der Thomasius-Schule (1968).
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