Thus the Proculians, like Labeo, normally prefer close objective interpretations of fixed texts, while the Sabinians allow interpretation based on the author's presumed 'subjective' intent. For example, if a debtor promises by stipulation to make a payment within a fixed interval of time, Sabinus holds that the creditor can claim payment on the first day of the period, while Proculus and his school rule that the claim is not legally effective until the entire period elapses.[1184] Similarly, if someone promises by stipulation to pay money to both the promisee and a third party, both schools recognize that, owing to absence of privity, the third party acquires no enforceable right through the contract; but whereas the Sabinians hold that the entire payment is owed to the promissee, the Proculians rule that only half of it is owed to him and the rest of the promise is unenforceable.[1185] The same differences recur in interpreting the Edict; for example, if the parties reach a settlement before the iudex renders judgment, the Sabinians require the iudex then to absolve the defendant in every case, but the Proculians require him to condemn in all trials not based on bona fides.[1186] There are numerous similar examples of these contrasting methods of interpretation, both for statutory norms and for private instruments.
Likewise, the Proculians tend to uphold Labeo's rational conceptual- ism, while the Sabinians take a looser approach to law. Probably the most famous example of this difference concerns the law of sale (emptio venditio)-. the Sabinians hold that barter, the promised exchange of an object for an object, is a form of sale and enforceable as such; but the Proculians deny this and point out that since there is no money price, there is no clear way to distinguish buyer from seller.[1187] Similarly, the Proculians often recognize the force of logical analogy in law, while the Sabinians play it down. For instance, the Proculians rule that the onset of puberty (and hence legal majority) should be legally presumed as of an age that is fixed for each sex, whereas the Sabinians insist on a physical inspection of boys even though this practice had long since been abandoned, for moral reasons, in the case of girls.62 Again, if a legacy is left subject to an impossible condition (e.g. 'pay ten to Titius if he touches the sky'), the Sabinians read the legacy as if the condition had not been written, but the Proculians void the legacy on the ground that a contractual stipulation subject to an impossible condition is also void.63
By contrast, the Sabinians use analogy in a looser, more equitable fashion that arguably better captures the spirit of Labeo's style; their position on barter as a form of sale is a good example. Sabinus' expansive attitudes are at their most aggressive in the area of delict; for instance, he grants the direct Aquilian action for wrongful damage even when the plaintiff's property was not physically harmed (e.g. the defendant struck coins out of the plaintiff's hand and they fell down a sewer), and he also extends the action on theft even to the unauthorized sale of land.64 Neither view was received by later jurists.
By and large, the Proculians emerge as the 'better lawyers', the Sabinians as the more flexible ones. Two central strains of Roman jurisprudence, formalism and equity, are momentarily divided from one another. However, in a number of respects it is misleading to lay too great a weight on these school controversies. First, even though the record of their controversies is incomplete, the school disputes seem to have centred mainly on technical details and do not necessarily imply a radically different stance on the nature and purposes of Roman private law. Second, the Proculians and Sabinians may not have represented all jurists then practising; the obscure jurist Atilicinus was clearly a Proculian, but other Julio-Claudian jurists may well have operated independently.65 Third, by no means all of the attested controversies can be easily explained through a simple dichotomy in legal method; the theoretical basis of many disputes is extremely obscure. Fourth, the schools were in any case unable to enforce a narrow dogmatism on their members; the view of one school is not uncommonly adopted by one or more members of the other.66
Finally, the school debates must also be understood within the context of the Roman judicial system, in which a iudex, if confronted by dissenting responsa from two authorized jurists, was free to apply the opinion that seemed to him more plausible.67 Juristic controversies,
Gai. Inst. 111.98, who admits that the Sabinian rule is hard to explain.
See, respectively, Ulpian, D 9.2.17.51; and Gell. NA xi.18.13, with Gai. Inst. 11.51.
Fragments of Atilicinus: Lenel 1889 (в 109) 171-4 (twenty-four citations, often with Proculus or Nervafitius); see also esp. Proculus, D 23.4.17, citing a letter from Atilicinus. Minicius may have been a student of Sabinus (cf. Julian, D 12.1.22); his writings were excerpted by Julian. Little or nothing is known of the jurists C. Caninius Rebilus (cf. n. 32), Longinus (pr. under Claudius?), Cartilius, and Servilius.
Liebs 1976 (f 668) 210-11. Individual school jurists may also take extreme or eccentric positions; e.g. the view of Nerva film on the physical nature of possession (Paul, D 42.1.1.1,3,14, 22, etc.).
Gai. Inst. 1.7 (citing a rescript of Hadrian); so already Gc. Caecin. 69. The index is thus not free to create his own law.
whether or not they arose through school debate, will have tended in practice to increase the flexibility of law, at any rate until one or another opinion prevailed and became 'the law we use' (ius quo utimur).
The founders of the two schools had already achieved eminence under Tiberius; they continued to dominate Roman jurisprudence during the reigns of Caligula (37—41), Claudius (41—54), and Nero (54—68). Relations with these emperors did not always run smoothly. The demented Caligula reportedly threatened to revoke all previous grants of the ius respondendi, and Claudius drove the jurists into the shade by wilfully interfering with the independent administration of justice.[1188] Still, Sabinus, Cassius and Proculus, and probably the younger Nerva as well, survived into Nero's reign.[1189] The politically powerful Cassius held important positions under all three emperors, but in 65 Nero relegated him to Sardinia because of his allegedly suspect political views; Cassius was recalled by Vespasian in 69, but died soon thereafter.[1190] As the great Julio-Claudian jurists passed from the scene, the way was cleared for a new generation.
v. legal writing and education