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The Sabinian V The Proculean School Of Roman Law

4468 words - 18 pages

"It has been suggested that the difference [between the Proculians and Sabinians] was mainly a philosophical one... There is probably some truth in this, but it explains only a small part of the controversies" Jolowicz, Historical Introduction (1932), p 385. DiscussThe so-called 'School controversies' of the early Principate between the Proculians and Sabinians has been described as "one of the more contentious issues in the field of Roman law". While we have been left with over twenty separate disputes between the different 'sects' or 'schools' in the Institutes of Gaius alone, we have scant information about the nature, function or purpose of these schools. This evidential lacuna has been filled by widespread academic speculation attempting to provide an explanatory rationale behind the disputes.Stein narrates a progression from early humanist scholars, who analysed the disagreements philosophically, to more modern historians who saw interpretative distinctions between equitable and stricti iuris approaches. When Stein was writing in the 1970s, the dominant view, held by De Zulueta amongst others, was broadly sceptical towards the idea of a unifying system that explained the disputes. Stein challenged this consensus, positing a methodological explanation casting Labeo and the Proculians as analogists, with the Sabinians as anomalists, following the division of the Greek grammarian schools.Leesen, in her thorough study of the controversies Gaius Meets Cicero, also lists, and dismisses, academic explanations such as the political rivalry between Labeo and Capito or a socio-political conservative/progressive dichotomy between the groups. She approaches the issue from a historical perspective and theorises that the disputes were rooted in the realities of legal practice. Thus, controversies arose when the heads of the schools offered different opinions, both of which were binding on courts as they were issued by jurists, she argues, with the ius publice respondendi ex auctoritate principis (the right to give responsa with Imperial power).Before we can understand what, if anything lies behind the disputes, it is necessary to examine who the Proculians and Sabinians were. Pomponius provides the bulk of what we know of the history of the schools through a passage included in the Digest at He outlines the various leaders beginning with Capito, who followed Ofilius, and Labeo, who was instructed by Trebatius. Interestingly, Labeo is said to have "listened to all of them" (qui omnes hos audivit D1.2.2.47) suggesting that Labeo had perhaps studied for a time under Capito but broke away to follow his own path. Highlighting the differences between the men, Pomponius notes that Labeo rejected the consulship offered to him by Augustus, while Capito had accepted and opines that Labeo "did much to innovate" (plurima innovare instituit) compared to Capito who "adhered to that which had been handed down to him" (in his, quae ei tradita...

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