Sabinians and Proculians

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The law schools of the Proculians and Sabinians (also called Cassians ) were two rival legal schools that had established themselves in Rome during the Roman Empire . From the early Principate until about the middle of the 2nd century all of the major jurists belonged to them. Due to the differences in content, the institutes use the term ius controversum .

In the context of the teaching of legal sources , the schools are representatives of the conventional “legal law” ( ius ).

Trailblazers and teachers

Ateius Capito is considered to be the founder of the Sabine school . Masurius Sabinus , later Cassius , Javolen and Julian also gained importance .

The school of the Proculians is often attributed to Marcus Antistius Labeo as the founder, but this has not been proven. In any case, it emerged by name from among his students, whereby Proculus was considered comparatively insignificant. It was followed by Nerva , Pegasus , Neraz and Celsus , among others .

Ius controversum

The two schools of law should not be understood as theoretical-political antipodes, because they were not institutions according to modern understanding, but merely typified ancient followers. However, they relied on quite different basic views in their methodology for solving individual legal questions. The way of working of the Sabinians was primarily based on traditional legal practice , which relied on the irrevocability of the authority of pre-classical jurists. This was especially true for the subject of the preparation of expert opinions ( responsae ). Basically, jurisprudence relies on the creation of case-by-case justice, but taking into account the needs structures of the economy and community.

The Proculians reflected on questions about the practicability of law. Legal texts were sometimes interpreted more restrictively, sometimes more extensively, with the proviso that they had to apply to a large number of applications and to be binding. In particular, it was about interpretation techniques of the legal interpretation . The unwritten customary law, equally valued, was also subject to this logic . The interpretation technique used by Roman lawyers was predominantly based on identification. They examined the facts of a legally relevant situation in life by comparing them with the wording of the law. Customary law, which was not fixed in writing, was based on the law- equivalent mos maiorum . Mos maiorum was considered by many classical lawyers as given, the standard norms could be updated according to their understanding ( interpretatio ).

At the beginning of the 20th century, the Romanists discussed different ways of assessing Roman methodology and the question of whether, in the sense of legal sources, “juristic law” is actually “law ( ius )”. Mostly this was and is affirmed, only differently assigned, on the one hand to written law ( ius scriptum ) and on the other hand to unwritten customary law ( ius non scriptum ). A so-called teleological interpretation ( sententia legis ) aimed at the goal, meaning and purpose of a norm was basically still unknown. Likewise, a historical doctrine of interpretation based on the history of dogma had not yet been developed. In this context, the Proculian high classic Celsus seems like a mastermind for methods of interpretation discussed much later when he formulated abstract principles of interpretation in such a way that the meaning should be placed above the wording of the law and referred to the will of the legislature, a method that was used in the 20th century Century the interest jurisprudence demanded. But mostly the (narrow) wording ( verba ) was used.

While the Sabinians mainly stuck to traditional and empirical-pragmatic ideas, the Proculians modernized. While the school sabinianische example, the issue of legal capacity (emancipation) measure of a boy on a case-by individual maturity that Prokulianer demanded an abstract unification. In the case of the boy, the completion of the 14th year was required so that he could be considered legally competent. While the Sabinians allowed claims under contract law even if the underlying contracts were ineffective, the Proculians denied mandatory claims and referred to catch-the-law suits such as the actio in factum to solve subsumption problems, or chose subordinate types of complaint, which they sometimes applied analogously to the actio de dolo (actually intended for cases of malice ). Gaius recalled another impressive case of the falling apart of the doctrinal opinions regarding the processing ( specificatio ) of foreign things. The Sabinians gave ownership of the processed material to the owner because that was where the processed thing continued. This is not the case with the Proculians, who advocated acquisition of property by the processor because the latter had created a new thing through his work, although he was exposed to claims of the owner of the material under enrichment law if the processing was carried out without his consent.

Cosima Möller had examined further cases in a controversial manner based on Detlef Liebs : “The exchange-purchase controversy”, “Possession of servitutes ” or “Liability according to the lex Aquilia in the event of not immediate damage”.

Consequential effects

Around the middle of the 2nd century the dispute between the law schools became obsolete. For most legal cases, prevailing opinions had emerged. These came either from the Sabinian camp or from the Proculian camp. Mediating solutions ( media sententia ) had developed for remaining controversies . A high degree of stability had developed in practice.


Individual evidence

  1. a b c Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 35 f.
  2. ^ Franz Peter Bremer: The legal teachers and legal schools in the Roman Empire , published by I. Guttentag, Berlin 1868, pp. 68-71 (70).
  3. ^ Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 1 no. 14 (p. 12).
  4. Uwe Wesel : History of the law: From the early forms to the present. CH Beck, Munich 2001, ISBN 978-3-406-54716-4 . Pp. 234-238 (236 f.).
  5. Gaius , Digest
  6. a b so Detlef Liebs : Roman law. A study book . 6th completely revised edition. Vandenhoeck & Ruprecht, Göttingen 2004, ISBN 3-8252-0465-0 , ( UTB 465 Law, Ancient History , ISSN  0340-7225 ), p. 55.
  7. Bernhard Windscheid examined the sources of law in his text book on Pandect Law and divided them into law and customary law.
  8. Max Kaser : Roman legal sources and applied legal method. in: Research on Roman Law Volume 36. Verlag Böhlau, Vienna, Cologne, Graz, 1986. ISBN 3-205-05001-0 . Pp. 33-37.
  9. Werner Flume : Customary Law and Roman Law , Rheinisch-Westfälische Akademie der Wissenschaften , Lectures G 201, 1975. See in particular p. 15 ff.
  10. ^ Max Kaser: Roman private law. Short textbooks for legal studies. Munich 1960. From the 16th edition in 1992 continued by Rolf Knütel . 17th edition ISBN 3-406-41796-5 . 18th edition ISBN 3-406-53886-X . I § ​​48 N. 21; II § 196 N. 24.
  11. Digest 1, 3, 17: Scire leges non hoc est verba earum tenere, sed vim ac potestam - Knowing the laws does not mean knowing their words, but their meaning and meaning.
  12. Digest 1, 3, 24: Incivile est nisi tota lege perspecta una aliqua particula eius proposita iudicare vel respondere - It is unscientific to judge on the basis of an individual determination or to give legal opinions without considering the overall context . (According to the statement, parts could not be taken out of context without violating the will of the legislature).
  13. Digest 1, 3, 18: Benignius leges interpretendae sunt, quo voluntas earum conservetur - Laws are to be interpreted more benevolently so that their intent is preserved (corrective interpretation of the wording to emphasize the (known) will of the legislature).
  14. It should be noted that children subjected to the patria potestas were not legally competent, but were quite capable of litigation, in particular legally competent (see Honsell, p. 35 f.)
  15. Gaius 2.79.
  16. ^ Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 14 no. 8, 9 (p. 234 f.).
  17. Cosima Möller : The assignment of Ulpian and Paulus to the imperial schools of law , in: Römische Jurisprudenz - Dogmatik, Tradition, Reception / Festschrift for Detlef Liebs on his 75th birthday, ed. by Karlheinz Muscheler , Duncker & Humblot, Berlin (= Freiburger Rechtsgeschichtliche Abhandlungen. New series, volume 63), pp. 455–468.
  18. cf. Gaius D 41,1,7,7.