Justinian’s Byzantine compilers did no better a job than the classical jurists. They did not abolish the lex Aquilia nor did they sweep away the absurd distinctions. In fact, with them the distinctions between the actio legis Aquiliae, actio in factum, actio utilis become more bizarre. The formulary system of procedure had disappeared to be replaced by the cognitio. One form of action was no longer kept so separate from another. The retention of the distinctions in the texts -- we do not know how the system worked -- is a powerful argument against substantive interpolation in the Digest.108 The lex Aquilia is also prominent in providing another argument against interpolation and illustrates the mind set of the compilers. Thus, for exampleD. ..andD. .. are both long texts from Ulpian, book on the Edict. In between is sandwichedD. ..from Paul’s book on the Edict: “For excessive brutality in a teacher is counted as negligence.” If the compilers had not valued fidelity to their sources they would sensibly have incorporated this little nugget from Paul into Ulpian’s discussion.109 The oddities and inadequacies of the lex Aquilia are shown by its fate at the Reception. In the Middle Ages, in the Renaissance and inthcentury Holland it was not doubted, so far as I am aware, that the lex III 108 For the view that, apart from specific exceptions there were no interpolations of substance see Alan Watson, ‘Prolegomena to Establishing Pre-Justinianic Texts,’ Tijdschrift voor Rechtsgeschiedenis (1994), pp. 113 ff.; J.H.A. Lokin, ‘The End of an Epoch: Epilegomena to a Century of Interpolation Criticism,’ inCollatio Iuris Romani, 1, ed. R. Feenstraet al. (Amersterdam, 1995), pp. 261 ff. 109 See also D.9.2.10, 14, 16, 20, 26, 35 IV
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