applying force and, so to speak, with his own hand: the word, that is to say, being interpreted fromcaedere and caede.” So Julian expressly states that for the lex Aquilia occidere is interpreted in a restricted and unusual way. All jurists must have been conscious of this. The actio in factumwould give the owner the value of the slave or his interest but would not cover the highest value the slave had in the past year. So far as our sources go this is never mentioned. Other texts talk of anactio utilis but whether or not this was the same as the actio in factumis not discussed. There is no moral distinction between “killing” and “furnishing a cause of death,” but the former could still give rise to totally disproportionate damages. And we are not talking here of legal idiots, but of the great Roman classical jurists. How could they reason thus? The only explanation is that they lived their culture. They made their contribution by legal interpretation but took no steps towards radical law reform. They were armchair law makers. In this, as I noted earlier, they were not alone. Thus, for rabbinic law medieval rabbis and Jewish community leaders understood the impracticality of much of the law in the Mishnah. The Rashba (R. Solomon ben Abraham Adret who lived in Barcelona around -) wrote in a responsum that if cases of personal injuries and similar matters were decided according to Torah law, the world would be destroyed. Subsequently the Ran (Rabbi Nissim ben Reuben Gerondi who lived circa-) accepted that some Gentile societies had law better suited than the Torah to the social order. For him the Torah law is designed to serve a religious purpose, not to improve the social order.
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