法学学派争鸣与罗马法的“争鸣的法”的性格 以被盖尤斯《法学阶梯》记载的21个学派争议为中心  

The Disputes between Different Schools of Jurisprudence and the Formation of Character of Roman Law as “Contending Law”Focus on 21 Disputes between Different Schools of Jurisprudence recorded by the Institutes of Gaius

作　　者：徐国栋[1] 

机构地区：[1]厦门大学法学院罗马法研究所

出　　处：《中外法学》2015年第4期938-966,共29页Peking University Law Journal

摘　　要：罗马的法学争鸣由来有自,从共和时期开始就有了穆丘斯派和塞尔维尤斯派的争鸣,到元首制时期发展为萨宾派和普罗库鲁斯派之间的争鸣。这两个学派的掌门人大多有强烈的实践倾向,这铸造了罗马法学的务实特性。所有的这些争鸣,不仅有学派间的,而且有学派内的,极大地推动了罗马法学的发展。这些争鸣还造就了罗马法的"争鸣的法"(iuscontroversum)的特色。尽管如此,罗马的法学争鸣只涉及私法问题,不涉及公法领域,这反映出当时的学术自由是在威权下进行的、有限的自由。对于罗马法学争鸣的原因,有不同哲学派别说、保守与进步区分说、严格法与衡平法不同偏好说、与皇权关系不同说、阶级立场不同说、方法论不同说、不同祖师爷说、不同法律分支偏好说等,荷兰学者特莎·雷森提出的地方论说较新,本文采之。In ancient Rome, the disputes between different Schools of Jurisprudence have a long histo- ry, and from the very beginning of the republican period there were the disputes between the school of Servius Sulpicius Rufus and the school of Quintus Mcius Scaevola.It constitutes the ancestor of disputes between the school of Sabinus and that Proculusin during the time of principate. Most heads of both schools tend to be strongly practical, which cast a pragmatic characteristics of Roman law. There were disputesnot only between different schools, but also within every contending schools. All of these diputes not only have greatly promoted the development of Roman law, but also have casted the （iuscontrover- sum） . Nevertheless, what the Roman jurists contended involves only in private law, instead of public law, which reflects the academic freedom of that time is under authoritarianism and limited. As to the reasons for Roman jurists contended, there are doctrines such as the doctrine of different philosophical o- rientation, the doctrine of contending between conservatives and progressives, the doctrine of one prefer- ring strict law and other preferring equitable law, the doctrine of two schools having different relationship with the imperial power, the doctrine of two schools with different class position, the doctrine of two schools employing different methodologies, the doctrine of two schools with different ancestors and the doctrine of two schools having different preferences to legal branches, etc. The doctrine of topica pro- posed by Dutch scholar Tessa Leesen is up--to--date, so I adopt it in this article.

关 键 词：萨宾派 普罗库鲁斯派 法学争鸣 地方论 穆丘斯派 塞尔维尤斯派 

分 类 号：D904.1[政治法律—法学理论]