Their rivalry was personal and political. Unlike their elders, both Labeo and Capito were politically active, but they diverged sharply in their attitude to the new regime. Capito, the grandson of a Sullan centurion and son of an obscure senator of praetorian rank, was widely considered a sycophantic courtier who prostituted his talent and knowledge in the service of his imperial masters.29 Labeo, by contrast, was the son of a jurist who had conspired in Caesar's assassination and committed suicide after Philippi; Labeo himself soon acquired a reputation for his prickly insistence on constitutional details, often to the government's momentary discomfiture. After Labeo's death, Capito wrote of his rival that he had been driven by his excessive, foolhardy
Pomponius, D 1.2.2.45; cf. Syme 1980 (f 697), but also Bauman 198) (f 642) 120-2. On Augustus' relations with the jurists, see Wieacker 1969 (f 70;).
Cf. Paul, D 4.3.18.4 (on the lex Iulia deiud.priv. of 17 b.c.); Paul, D 32.29/w. (on the lex Iulia de marit. ord. of 18 b.c.). A responsum concerning Maecenas' doubtful divorce from Terentia e. 15 b.c.: Javolenus D 24.1.64; consultation by Augustus (below, at n. 82) c. 20 b.c., see E. Champlin, ZPE 62 (1986) 249-31, more plausible than the traditional date of a.d. 4.
Pomponius, D 1.2.2.47; on his expertise in language studies, see Gell. NA xiii.io. 1, with Stein 1971 (f 694). Born c. j o, Labeo entered the Senate by 18 (Dio liv. i 5.7-8) and died late in Augustus' reign (below, n. 44); the family stems from Ligures Baebiani in Samnium, cf. Kunkel 1967 (f 666a) 32-4,114. Fragments: Lenel 1889 (в 109) i 299-313, joi-)8 (367 citations and 109 fragments-more than all other Augustan jurists combined). Still invaluable on Labeo is Pernice 1873—1900 (f 678).
On the rivalry: Tac. Ann. 111.75; Pomponius, D 1.2.2.47 (noting that Capito was taught by Ofilius). Born e. 45, Capito entered the Senate by 17 B.C. (Zosimus, 11.4.2: the legal date for the Secular Games) and died in a.d. 22 (Tac. Ann 111.7j). Of municipal origin: Kunkel 1967 (p 666a) 114—15. On Augustus' consilium in a.d. i 3: Bowman 1976 (в 367) 154. Fragments: Strzelecki 1967 (в 172) (almost all from antiquarian works; he is cited once in the Digest).
Capito's ancestors: Tac. Ann. 111.75.1. His sycophancy, esp. to Tiberius: ibid. 111.70, 75; Suet. Gramm. 22; but see also Rogers 1964 (f 682).
passion for libertas.2® Augustus, keen to extend patronage to this new generadon of jurists, offered both men a suffect consulate; and when Labeo, pleading the press of his legal studies, refused the honour, Augustus returned the snub (so we are told) by advancing the date of Capito's consulate (a.d. 5).31 Literary sources on the two men are obviously biased by their typically senatorial oudook: contempt for the fawning Capito, admiration for the gruff and independent Labeo.
Jurists saw the rivalry quite differently. As Pomponius states, Capito clung narrowly to received views on law; but Labeo, more self-confident and daring, 'undertook numerous innovations' on the basis of his mastery of other branches of learning.32 This judgment, which may seem innocuous enough, has a dramatic consequence in the juristic tradition: Capito is all but ignored by later jurists, whereas Labeo is cited more often than any jurist before the high classical period, his voluminous writings are frequently annotated or edited by later jurists, and his opinion is usually treated with great respect even when it fails to carry the day.33 In short, Labeo is a commanding figure, the first indisputably 'classical' jurist.
To be sure, it is unclear what Pomponius means in saying that Labeo 'undertook numerous innovations'. The juristic tradition survives so fragmentarily that legal historians find it difficult to determine whether Labeo's position on a given question represents genuine innovation with respect to his predecessors. In any case, what modern scholars have chiefly discerned in Labeo's fragments are the traces of a defter and more conscious methodological approach to law, which Labeo may well have pioneered.34 A description of this method is not easy since it must be based on evidence haphazardly preserved, but the following is thought to be more or less accurate.
First, Labeo stresses the importance of solving legal problems, if possible, through direct interpretation of fixed texts — either general norms such as can be found in statutes or edictal provisions, or self-
Labeo's ancestors: Kunkel 1967 (f 666a) 32-4,114. His independence: Tac. Алл. 111.73; Suet. Aug. 54; Dio liv. 15.7—8. Capito on Labeo: Gell. NA xin.12.1—4.
Tac. Ann. 111.73.2; Pomponius, D 1.2.2.47 (diverging on details). Pomponius also notes that Labeo spent half of each year 'with students' ('cum studiosis') in Rome: their names are lost.
Pomponius, D 1.2.2.47. n°rr 1981 (f 674), discusses the paradox that the politically 'traditionalist' Labeo was the greater legal innovator. Capito's moral reputation may have adversely affected Ms standing among later jurists; compare the disreputable jurist C. Caninius Rebilus (cos. suff. a.d. 37; cf. Tac. Ann. xin.30), not cited in the Digest.
On Labeo's fragments, see n. 27. Labeo's Posteriores were excerpted by Proculus and Javolenus, annotated by Aristo and Paul; the Pitbana were annotated by Paul. Examples of later respect for Labeo: Javolenus, D 40.7.39.4; Ulpian, D 8.3.2.3; Callistratus, D 49.14.1.1. Paul's acerbic notae may be a youthful work.
Pomponius, D 1.2.2.47; 'plurima innovare instituit'. See Seidl 1971 (f 691); Stein 1972 (f 695) 9-16.
imposed norms contained in private documents like contracts or wills. Further, Labeo assumes that the wording of such a text is intended to express its author's intent fully, that the author's intent can be presumed radonal, and that the author seeks primarily to communicate this intent (rather than, say, to express himself); therefore Labeo is usually reluctant to advance beyond the ordinary, 'objective' meaning of the words used in the text, even if the result is arguably harsh.[1164] Two examples from contract law may illustrate this method of reasoning. If a contract clause clearly disadvantages one party, Labeo none the less enforces the clause if this interpretation corresponds with the apparent or 'objective' content of their agreement (id quod actum est); only if the overall agreement is unclear does Labeo resort to the externally more plausible interpretation of it. On the other hand, Labeo is also willing to construe an incurably ambiguous text against its author if he could have expressed himself more clearly.[1165] Labeo's interpretations are not necessarily narrow, but they almost always are closely controlled by the text itself.