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To what extent was a slave a thing or person in classical Roman Law?
Modern Western legal systems date back to ancient Greek law, which was developed and refined by the Romans. In its earliest form, Roman law was an extreme notion of formalism, developing as the law of the privileged classes, expanding as the empire grew to become the basis of all civil legal systems.
Perhaps one of the most important contributions of Roman law was the acknowledgment of ownership and private property rights, which moulded the modern property law system in many parts of the modern Western world.
The early Greek merchants developed a sophisticated system of commercial law, recognising the need to protect ownership. Legal historian John Maxcy Zane commented that: “The law as to possession and ownership of property was sufficient to protect it”. In the earliest form of litigation, damages were given for damage caused to slaves, which were a vital commodity for owners. The legal principles of slave ownership and status contributed to the development of the concept of property rights, which evolved to develop into the property system in the modern world.
The focus of this analysis is to consider in detail the legal status of slaves under Roman law, particularly focusing on the development of civil status under Roman law and how the development of Roman law affected the rights of slaves.
Roman property law began with the concept of ownership, and it mainly applied to slaves and land and the principle requirement was that the property or slave was acquired by virtue of a legitimate transaction and unchallenged ownership for a year in the case of slaves. The concept of ownership and alienability of slaves as a commodity lends itself to the view that slaves were regarded as “things” as opposed to persons under Roman law.
The Roman Digest (described further below) and the Twelve Tables assert the legal status of slaves as property of their owners and owners exercised dominium over slaves. Dominium was the absolute right to dispose of and control the use of a piece of property. Again the reference to slaves as property by implication would again support the view of slaves as things.
Roman law further provided that all law pertained to persons, things or to actions. A man and person were not one in the same and a slave was not a person, but a thing, contrasted with a person, that was regarded as a human being with civil status.
Civil status under Roman law was derived from liberty, citizenship, and family. If one had no civil status they were regarded as a mere thing. It was from the notion of “things” that modern property law developed. This is discussed in further detail below.
Men were either free or slaves, if they were free they were freemen or freed men. Slaves were born as slaves or became slaves under the law of nations or civil law.
The above highlights the status of slaves as things and effectively a commodity, indicating status, which in turn demonstrates how the Twelve Tables acknowledged possession and ownership and therefore recognised private property rights.
Initially Roman law only applied to its citizens and was eventually extended to grant rights to every citizen under the roman law of property. Historian Colin Wells observes that: “the main benefit of Roman citizenship in Gaul will have been to bring the new citizen under the Roman law of property, which meant that they could now be held to own wholly and perpetuity land”. From the right of citizenship grew the notion of property rights and succession, with property being passed heirs and at last the acknowledgment of private property in land freely alienable by individuals.
Further, Roman lawyer Cicero asserted that the principles underlying a rule of law was that everyone was governed by natural law and that the “those who are citizens of the same state ought to be equal”. However, this was not applicable to slaves, again highlighting the lack of recognition of slaves as people entitled to the basic human rights derived from natural law and associated with civil status.
Under the law of nations, slaves were either by captivity and civil status as slaves was by virtue of inheritance and parental lineage or in occasional cases where they permitted themselves to be sold in order to participate in the price. This notion of consent, coupled with the fact that Roman law provided for some form of civil status as slaves would contrary to Cicero’s assertion suggest that they were more than things, however in reality their treatment and main use as a commercial commodity contradicts this view.
Civil status under Roman law was either sui juris (own master) or alieni juris (subject to another). Again, this notion of consent coupled with the category of civil status would still suggest some sort of rights that go further than the legal concept of a thing. However, these slaves were still subject to the dominical power and the notion of “alieni juris”, contradicts any notion of free will or basic rights that persons take for granted. Slaves were ultimately used as things in commerce and might be sold, donated, or bequeathed by legacy.
The Roman slave trade was complex and some works of Roman scholars indicate that there were varying degrees of status within the slave community itself. A slave’s identity was effectively dependant on many factors such as the period in which they lived, their place of birth and their role within the household they belonged to. For example, Cicero’s slave was his close friend and personal confidant and advisor, yet the legal status of his slave acted as a barrier to complete friendship or the slave having any civil status under Roman law. This further emphasises the status of slaves as less than citizens with the rights accorded to citizens under Roman natural law.
This is again further emphasised by early legal reports in the Roman Digest, which was a compilation of laws, legal problems, and legal reasoning created for the Emperor Justinian in the sixth century, CE. The Digest includes the analysis of one of the greatest renowned Roman legal scholars, Ulpian.
One such analysis of Ulpian included a detailed report of a legal problem involving a dispute regarding the Roman law requirement that a seller of slaves warrant that the slave did not have a defect. Ulpian considered whether this warrantee could be given in the situation where the slave’s tongue was cut out or whether the slave in question was inherently defective. Ulpian referred to the works and opinions of other scholars who felt that this warranty could not be given for a slave as such a warranty could not be given by a seller for a horse whose tongue had been cut out. The analogy of the slave with a horse further heightens the lack of legal recognition of a slave’s status as a person and rather as a social institution, which was commercially viable and indicated empowerment.
As Roman law matured, it developed a natural law theory as the yardstick for reasonableness and rendered the concept of justice obsolete. Cicero asserted that “justice is natural, not the effect of opinion”. Under Roman law concepts of justice were linked with perfect law and the appreciation of divine will, with notions of just and unjust.
The Romans viewed law as positive or natural and instinctive. Furthermore, things in Roman law were “divini vel humani juris” and governed by divine/human law. The concept of “jus gentium” means natural in itself and universally recognised by all men that a presumption arose by reason of universality. The Romans attributed slavery to the jus gentium, because it was universally practised, and therefore implied the consent of all men, yet this legal principle contradicted the definition of slavery that was viewed as against nature.
Furthermore, legally slaves were removed from all the rights and rituals of human society and natural law. Slaves were prohibited from having family and although some may have had children, they had no legal authority to protect these relationships. Slaves who had borne or fathered a child had no legal rights to their children. Similarly, while owners frequently gave slaves an allowance, the slave had no legal right to this as a salary and was required to surrender on demand. The main purpose of the “peculium” was to act as a further device by which an owner could use the slave as his property more effectively in a commercial sense as opposed to granting the slave any form of concrete rights, which again supports the view that legally slaves were regarded as things.
A slave had no honour or dignity and the essence of being a slave was the inability to protect one’s body. Every citizen had a right to trial and appeal, however a slave was further distinguished and defined by the absence of this right and an owner could compel sexual relations from slaves and this would not constitute rape. If someone had intercourse with a slave without the owner’s permission, the owner could sue that person for trespass. This flagrant lack of fundamental human rights for slaves further emphasises the weak legal position of slaves.
Slaves were not permitted the benefit of ownership and whatever was acquired through them accrued to the masters.
Furthermore, the Roman Digest and Twelve Tables expressly set out the definition of “things” under Roman law. There was a distinction between, “things sacre”, which were gods and protected and could not be owned as not considered commerce and things humani juris, which were the things with which the private law concerned itself. There was a further distinction of things that were “res mancipi”, which was highly prized by the Romans such as slaves and required formal emancipation. This early recognition of private property rights highlights the status of slaves as things.
Things were regarded as corporeal (tangible) or incorporeal. Possession was the detention of the tangible thing coupled with the intent of ownership, it might be in good faith or in bad, but if there was a just title the possession was just. A true possession was possible of a corporeal thing only and possession of incorporeal things was a right.
The inclusion of slaves within this collection of rights would seem to contradict any notion of slaves as “persons”. This is further demonstrated by the fact that the principle of “servitude” was not a service of a person, but of a thing to a person and some servitude was real or personal and others could only be personal such as the labour of slaves.
The above analysis demonstrates that slaves were effectively a social symbol of wealth and empowerment, by granting the right of dominium. Despite the natural law implication that slave status required “consent”, this contradicts the fundamental notion of slavery. Furthermore, the Roman law development of mature legal concepts such as civil status, personal basic human rights and private property rights, further highlights the lack of recognition of slaves as persons. Slaves effectively had no rights or standing. They were legally defined as things and continued to be treated as things and commodities that could be sold and used to increase commercial status, whilst the rights of other “citizens” continued to develop. Only when the emancipation of slaves increased and when the concept of slavery was not seen as socially normal that slaves would begin to enjoy status and rights as persons.
Bibliography
Andrew Borkowski and Paul du Plessis “Textbook on Roman Law,” Oxford University Press 2005.
Colin Wells, “The Roman Empire”, Harvard University Press (1984) Reprinted 2004.
Andrew R. Dyck, “A Commentary on Cicero “De Legibus”, 2003, University of Michigan Press.
George Mousourakis, “Roman Law and the Origins of the Civil Law Tradition”, May 2003.
Tony Honore, “Ulpian – Pioneer of Human Rights”, Second Edition 2002, Oxford University Press.
“Cicero on the Ideal Orator”, translated by James M. May and Jakob Wisse, Oxford University Press (2001).
John W.Cairns, “Critical Studies in Ancient Law, Comparative Law and Legal History: Essays in Honour of Alan Watson”, 2001, Hart Publishing.
Alan Watson, “Ancient Law and Modern Understanding,” 1999, University of Georgia Press.
Alan Watson, “The Digest of Justinian”, Revised English Edition 1997, University of Pennsylvania Press.
Justinian, the Digest of Roman Law, Harmondsworth, Penguin 1986.
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