法學學派爭鳴與羅馬法的“爭鳴的法”的性格－－以被蓋尤斯《法學階梯》記載的21個學派爭議為中心

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

羅馬的法學爭鳴由來有自，從共和時期開始就有了穆丘斯派和塞爾維尤斯派的爭鳴，到元首制時期發展為薩賓派和普羅庫魯斯派之間的爭鳴。這兩個學派的掌門人大多有強烈的實踐傾向，這鑄造了羅馬法學的務實特性。所有的這些爭鳴，不僅有學派間的，而且有學派內的，極大地推動了羅馬法學的發展。這些爭鳴還造就了羅馬法的“爭鳴的法”(iuscontaroversum)的特色。儘管如此，羅馬的法學爭鳴只涉及私法問題，不涉及公法領域，這反映出當時的學術自由是在威權下進行的、有限的自由。對於羅馬法學爭鳴的原因，有不同哲學派別說、保守與進步區分說、嚴格法與衡平法不同偏好說、與皇權關係不同說、階級立場不同說、方 法論不同說、不同祖師爺說、不同法律分支偏好說等，荷蘭學者特莎•雷森提出的地方論說較新，本文采之。

In ancient Rome, the disputes between different Schools of Jurisprudence have a long history, 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. lt 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 (iuscontroversum) . 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 orientation, the doctrine of contending between conservatives and progressives, the doctrine of one preferring 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 proposed by Dutch scholar Tessa heesen is up-to-date, so I adopt it in this article.