Without Rights? Social Theories Meet Roman Law Texts

The title holds out great promise: but it immediately becomes clear from the format that this paper does not address Roman slave law as a whole. For that purpose, we can still confidently turn to Buckland's masterwork,1 which, despite the many recent, more narrowly focused studies, has not lost its value as an exhaustive survey of the topic. This paper does not address the question of slave law as such, but instead asks whether Roman legal texts can provide information about the social reality of Roman slavery.

To start with, there are methodological questions: what terms and concepts can we use to describe a society that we do not know from empirical observation but only from its artefacts? The term 'slave law' (1) is just as multi-layered and imprecise as the term 'slavery' (2). Both are modern, and as such have the potential to get in our way as we examine historical conditions. Awareness of this hermeneutical problem enables us to clarify in outline (3) how Roman jurists classified slaves and categorised them as objects or actors of property law. In doing so, we confront sociological concepts and socio-historical findings with modern exegesis. Unsurprisingly, not all Roman texts that are used to support popular arguments are in fact suitable for this purpose. Ideas about so-called 'Roman slave law' feed on narratives that emerged during the period of transatlantic slavery. However, the fact that Roman jurists also had very definite ideas about the social inferiority of Roman slaves emerges clearly even from a close reading of Roman legal sources. But it is not only the rules but also the nuances that deserve attention.

1 Was There Ever a Roman Slave Law?

This question will surprise many: was there ever a Roman slave law? There were slaves and there was a legal system, so there will have been slave law in Rome. How could Roman law, worked out with such great precision and in minute detail, have bypassed the millions of slaves2 on whose very existence Rome's specialised economy was based in the first place? Have not thousands3 of ancient legal texts on slavery4 come down to us? Was Roman slave law not repeatedly used as a model for later rules5 or codifications, such as Louis XIV's 'Code Noir'?6 The parallel to the Roman model was certainly repeatedly invoked in the era of the transatlantic slave trade.7 So did what was so often observed and described never even exist?

Not necessarily. For what we think of as slave law today builds on concepts that the Roman jurists probably were not even aware of. Each generation creates its own conception of what slavery is, of what law is. Both define what might be identified as 'slave law'. A Roman jurist would probably have classified early nineteenth-century wage labourers as slaves and might think of civil servants and agency workers today as slaves, too. Conversely, a modern jurist might waver in his assessment of Roman 'slave society'8 if he was told that many masters kept and cared for their slaves even in old age and sickness.9 Even if, in the seventeenth or eighteenth century, people thought that their own regulations on slavery would follow Roman law, this was not a historical claim. At the time, as in the usus modernus iuris romani10 in general, the ancient texts were used to solve current legal questions. But these often had little or nothing to do with what we know today as historical Roman law.

Many modern studies of slavery in Roman law continue to make very similar mistakes. Even Buckland already rebuked this 'defect of the gravest kind'.11 Some studies idealise the curbs on slave masters' despotism as an expression of the idea of humanitas in jurisprudence.12 Others put Roman slavery on a par with transatlantic slavery;13 yet others resort to purely legal terminology and define Roman slaves as their masters' objects and property.14 While none of these approaches produces exclusively false insights, none quite does justice to the historical circumstances either.

They all share the same mistaken approach: they try to describe and classify ancient slavery with the help of modern concepts. Those who speak of 'humanity' will find it hard to distance themselves from the meaning this term acquired during the Enlightenment,15 and so struggle to separate its philosophical16 from its socio-ethical significance.17 What makes it all the more difficult to distinguish between the two is the fact that Roman jurists actually used humanus or humanior in a legal-ethical sense, correcting strict law.18 'Strict law', however, does not refer to the norms that regulated the positions and duties of slaves but to the formalised ius civile that was rigid in content and had come down from the ancestors. The humanitas of the Roman jurists is therefore not the one that we expect of humane law today.

Much the same is true for analogies with transatlantic slavery. Being a slave in the late Republic or the Empire was a deplorable fate for most. The vast majority of Roman slaves worked on latifundia, in quarries and mines or on galleys; their lives were joyless, miserable and usually short, and probably differed little from those of the slaves in the European colonies. But archaeological and literary evidence for the enslaved labouring masses is rare. We are, however, very well informed about the much smaller number of more advantaged domestic slaves. This may distort our view of ancient slavery. Even so, comparison with transatlantic slavery is misleading. One essential difference is that Roman slavery, unlike its transatlantic counterpart, had no racist basis.19 In addition, the position of Roman slaves cannot be clearly described either in social or legal terms: 'Roman slaves were of many types', as Watson rightly noted.20 This is also the subject of this paper. If we want to perceive and classify the differences, it helps to leave behind the stereotypes of transatlantic slavery. In this as in any historical study, moral judgements do more harm than good.

2 Roman Slaves and 'Social Death'

Orlando Patterson, following Claude Meillassoux,21 described slavery as 'social death'. He defined a slave as a person who has no kin, no origin and no home, who is at the mercy of his master and has 'no social existence outside his master',22 arguing that this concept fully applied also to Roman slaves.23 As fruitful as the concept of 'social death' can be in describing slavery, it is inaccurate as a description of Roman conditions. Patterson himself identified two possible objections to his hypothesis: for one thing, there were many Greek slaves in Rome and the esteem in which Greek culture was held could have been reflected in Roman attitudes towards them.24 For another, certain slaves performed important tasks in the imperial administration, so that their social status may have equalled that of free men.25

Patterson rightly rejected the first objection: respect for everything Greek did not improve the social status of Greek slaves. But there is another dimension to this objection that Patterson did not sufficiently consider: many elite Roman families employed Greek tutors, many of whom were slaves.26 While the social position of these educators was not unassailable,27 it was much more assured than that of other slaves. In addition, it should be kept in mind (which is not Patterson's point28) that as part of the reception of Greek culture, stoic ethics found great favour among Rome's educated classes. This was probably the driving force behind the acceptance of the concept of the equality of all human beings29 endorsed in learned discourses.30 Such positions31 were not without influence on the pertinent social norms, i.e. what was considered to be the right or decent way to act beyond legal stipulations in dealing with slaves. Even if the legal texts remain largely quiet on this front, we should not underestimate the 'inhibiting influence of social norms on the behavior of individual masters toward their slaves'.32 The concept of favor libertatis33 may show how this influence found expression in concrete legal terms. The same applies to a series of imperial measures that improved the legal position of slaves.34

The second objection, i.e. the prominent position of the familia Caesaris,35 for example, is also not easy to refute. Patterson rightly points out that the members of the familia Caesaris were exposed to the whims of the emperor;36 the ever-looming risk of falling from grace was one reason why the emperor could count...