Second, if no text is available and law must be created, Labeo often relies on his belief that legal rules and institutions should be rationally purposive in their relation to society. This belief leads him to search for supervening principles that can be used to resolve doubtful cases. For example, if a minor child is old enough to understand his actions, should he be held liable for his wrongful damage to property (damnum iniuria datum)? Labeo says yes, simply because such a child is also held liable for his acts of theft (furtum); if law is rational, the child should be liable for both delicts unless there is a clear basis for distinguishing them. Labeo's fragments frequendy display similar examples of reasoning by analogy.[1166]Labeo's use of analogy is coupled with his insistence on sharp normative definition of legal institutions, so as to prevent their becoming blurred in practice.38 For instance, when a legatee is left the 'use' (usus) of a farm, Labeo sets down clear rules allowing the legatee to bar the farm's owner (and, by analogy, the owner's domestic slaves) from residing on the farm; but Labeo does not allow him to prevent the owner's slaves or tenants from exploiting the farm; likewise, the legatee may use storage rooms for wine and olive oil, and may also forbid the owner from using them.39 Labeo effortlessly generates these elaborate rules out of an implied definition of 'use', which his discussion is intended to illustrate; he obviously recognizes that, when vested property interests may conflict, certainty is all important.
Third, Labeo's decisions are often apparently influenced by an underlying belief that, in principle, no person should draw unjustified enrichment, even innocently, at another's expense, and that procedural law should if possible be construed to prevent this from occurring. Thus, for instance, if I lose a borrowed object and then pay the lender its value, and the lender later recovers the object, Labeo rules that I may sue the lender on the contract in order to recover (as the lender wishes) either the object or the payment for it. Labeo seemingly arrives at this decision through simple construction of procedural law, avoiding the fiction that the lender and I had ever 'tacitly' agreed on this outcome.[1167] Likewise, Labeo rules that a plaintiff should have an action on fraud (actio dolt) not only if, as the Praetor's Edict expressly provides, no other remedy is actually available, but also if it is unclear whether another remedy is available.[1168] In this context, it is no surprise that Labeo makes some of the earliest juristic decisions that impose on sellers a warranty of merchantability for the goods they sell, regardless of whether they are aware of major defects in these goods.[1169]
Labeo's various approaches to law are obviously not always compatible with one another, but he maintains an impressively productive tension between them. His influence with later jurists may thus result less from his specific substantive innovations than from the principled rigour of his decisions. In any case, his dominance of the Augustan era is so complete that his contemporaries are thrown into all but total obscurity. Fabius Mela, for example, was an able and penetrating jurist, to judge from surviving citations of his commentary on the Edict. It was Mela, for example, who concocted the famous hypothetical case of the slave whose throat was cut when an athlete's carelessly thrown ball struck the hand of a razor-wielding barber; this hypothetical case brilliantly illustrates several contrasting features of the law governing wrongful damage to property, including proximate cause and contributory negligence.[1170] But Mela remains a shadowy figure within the juristic tradition; he may or may not have possessed the ius respondendi, but he was unable to compete on even footing with his more eminent contemporary, and Pomponius, in his history of Roman law, does not even mention Mela.
iv. proculians and sabinians
Labeo's dominant position among the jurists ended only with his death, probably late in Augustus' reign.[1171] No jurist could take his place, and in fact the reign of Tiberius (14-37) saw the more or less formal split of Rome's major jurists into two rival 'schools': the Proculians and the Sabinians or Cassians. This division would endure well into the second century; but its nature and the reasons for it remain controversial.[1172] It is even unclear what our sources mean by 'school' (schola or secta) in this context: to what extent the two schools had an independent corporate existence, where and how often they met, how they recruited members and selected leaders, what role they played in legal education, and so on.[1173] Later jurists concentrate on recording their disputes concerning particular legal questions; these disputes are reported not only in the Digest and other post-classical sources, but also in Gaius' Institutes.[1174]
The emperor Tiberius, himself keenly interested in all branches of learning, extended political patronage to both schools; and whatever their earlier qualms, jurists now no longer declined the opportunity to obtain the consulate.[1175] The Proculians owe their name to the brilliant jurist Proculus, who has been plausibly identified with Cn. Acerronius Proculus (cos. ord. 37).[1176] However, Proculus did not derive from a socially prominent family, and during most of the Julio-Claudian era the Proculian school was also nominally led by two members of a far more influential family: first by M. Cocceius Nerva (cos. suff. 21/2), Tiberius' close friend who committed suicide in 3 3, and then by his homonymous son (cos. suff. 40), the emperor Nerva's father, who together with Proculus presided over the school from 3 3 until late in Nero's reign.[1177]
Proculus, clearly a more brilliant jurist than either of the Nervae, appears to have relied on their prestige in order to secure a hearing for his views.
The history of the other school is similar but more complex. Masurius Sabinus, its first leader, was not by birth a member of Rome's status elite; indeed, at first he allegedly supported himself through honoraria from his students. At the advanced age of fifty Sabinus finally entered the equestrian order, doubtless through the patronage of Tiberius who also granted him the ius respondendi - the first time that a non-senator had received this honour.[1178] Sabinus' writings, above all his brief but authoritadve treatise on the ius civile, enjoyed very great eminence among later jurists, who frequently commented simply 'on Sabinus' (ad Sabi- пит).ъг However, Sabinus evidently shared leadership with one of his students, the extremely well-placed aristocrat C. Cassius Longinus (cos. suff. 30), whose direct ancestors included the jurists Servius and Tubero.[1179] (This is a particularly clear example of the tendency of jurisprudence to 'run in families'.) In early sources the socially prominent Cassius is usually described as founding the 'Cassian' school (Cassiani)\ but the members of the school eventually came to be called 'Sabinians' (Sabiniani) after Sabinus, whom later jurists esteem more highly.[1180] Both men survived into the 60s and probably ran the school jointly.
Since the Renaissance, legal historians have sought to isolate the underlying legal basis of the numerous doctrinal disputes between the two schools. A half-century ago it was widely argued that their differences resulted in large part just from the separate operation of the two schools; divergent solutions to various legal problems were formulated in each school and then transmitted from teacher to student, without a consistent pattern of larger dogmatic disagreement.[1181] There is doubdess a measure of truth in this view. However, more recent scholars have re-emphasized a methodological line dividing the Proculians from the Sabinians.[1182] According to Pomponius, the origin of the school disputes was the earlier rivalry between Labeo and Capito; the two schools simply increased their differences, with the Proculians imitating Labeo and the Sabinians Capito.[1183] And in fact the Proculians do frequendy rely on an approach to law that somewhat resembles Labeo's principled rationality; by contrast, the Sabinians often adopt a freer, more heterodox position, though whether they are following Capito in this respect is unclear.