Roman law and English law

If we now turn our attention to Roman law, we shall see that in certain significant respects it bore a greater resemblance to the English law of torts than to its modern civilian descendant.

"more affinity between the Romanjurist and the common lawyer than.., between the Romanjurist and his modern civilian successor".^[4664]"

Like trespass, the Roman notion of delict had a strongly criminal flavour; and even though the compensatory function came increasingly to the fore, in the course of Roman legal history the penal element was never entirely abandoned. As a result, the distinction between crime and delict was much less clear-cut than it is today. More importantly, however, the Roman law of delicts, like the English law of torts, displayed a wholly casuistic character. It was based on a variety of nominate delicts but could, ad hoc, conveniently be expanded by praetorian intervention. This intervention took the form of new formulae, sometimes issued in close analogy to the established ones, in other cases drafted independently. Designed to accommodate, and thus to turn upon, a specific combination of facts, the new remedies may be regarded as the Roman equivalent of the English writs "upon the case".^[4665] Unlike the modern civilians, but very similar to the English common lawyers, the Roman jurists avoided generalizations and abstract definitions. Proceeding from case to case, they were "more anxious to establish a good working set of rules... than to set up anything like a logical system".⁷⁸ Their efforts did not culminate in a streamlined law of delict but remained a somewhat haphazard assemblage of individual delicts. Yet, the ingenuity with which they penetrated the problems of a vast mass of casuistry and with which they devised suitable rules and criteria paved the way for the modern endeavours to conceptualize, generalize and systematize the law of delictual liability.

6.