SWPS University of Social Sciences and Humanities
Warsaw-Polend
Between the objectivity and the subjectivity of slave
in private law of ancient Rome
A brief discussion on the future of Roman
law
Contents: 1. The need of new
research in Roman law - the problem of the legal position of a slave. – 2. The slave as a thing in the light of law sources. – 3. Is it really truth that a slave was treated as a thing? –
4. The cases of recognition of slaves as a subject in
private law. – 5. Summary.
1. – The
need of new research in Roman law - the problem of the legal position of a
slave
Learning and teaching of Roman law at European universities has been
experiencing a crisis since long time[1]. In many countries belonging to the legal culture referred as civil law, the Roman law came out of the
curricula of university, such as in France, the Netherlands and Belgium. In
other countries, there is a process of slowly reducing the number of hours of
lecture, for example: in Italy, Spain and Poland, or the process of connecting
the Roman law with the civil law, for example in Germany.
There are of course many reasons for such situation. The politicians
point the need to educate more "engineers of law" rather than human
of law culture. According to many positivists, the lawyer should know the law
and know how to use them, without a deeper reflection on its cultural and
historical meaning[2]. The responsibility for this situation, to some extent, also falls on
the Romanists themselves who continue to practice just pure Romance. However,
due to a lack of knowledge of Latin by the current generation, not to mention
the knowledge of ancient Greek, the Roman law becomes less and less
understandable. Taking the research topics not related with the problems of
current times, for example: macipatio
or legis actiones, does not encourage
young people to study and listening to lectures on Roman law. Koschaker, already in 1947 wrote: Die
Lage des Studium des römischen rechts ist heute zweifellos sehr ernst, wenn man
von ihm wie früher fordert, das es ein lebendiges Glied der juristischen
Bildung sein soll[3]. In addition, the negative image of
ancient Rome consolidates in movies and literature, presented as a world of
violence, the world of slaves’ abuse and the endless wars.
Therefore, it should be positively assessed that many Romanists
undertake the research on the Roman law issues and connected it with the
dynamic of its development, with its functionality and often in conjunction
with comparative legal method by which it is possible to connect the Roman law
with the contemporary problems and their solutions. In the same spirit, the
research on the timelessness of Roman law, adopted in the recent past, should
be evaluated positively.
The new trend of the Romance studies researches is represented by the
elaboration of such authors as: Luchetti and Petrucci[4], Giaro[5] or Monateri and Somma[6]. These authors use the previously mentioned new research methods,
including the functional method[7], the economic analysis of law or the comparative-legal methods[8]. Still, others Roman researchers engage in science activities
popularizing the Roman law. Wołodkiewicz issued a number of interesting
short publications in law journals popularizing various institutions and
solutions derived from Roman law and having further legal significance today[9]. Also, the textbooks on Roman private law with references to the
corresponding modern solutions are written[10]. These actions are necessary due to the contemporary ongoing cultural,
social or technological changes in the system. The sensitivity on the human and
his cases increases, which causes a lack of understanding of the various
institutions of the ancient world, including slavery.
In this spirit, I would like to relate to the views on the legal
position of a slave, showing a fairly static in textbook of Roman law. The
slave is defined there as a thing, completely deprived of legal capacity and
the capacity to legal actions. This study will try to recall the already known
sources of Roman law concerning slavery, showing the dynamics of the
development of the legal status of a slave. Primarily, I would like to show the
development of the concept of slavery in ancient Rome which went towards
empowerment of the slave.
Robleda
in his publication devoted to the issue of slavery wrote that: Lo schiavo viene considerato dal diritto in
Roma come una cosa, nel senso patrimoniale; dunque, come oggetto del diritto[11]. Despite
the fact that the completely different conclusion should be driven from
Robleda’s studies, it means that the slave gradually become more and more the
subject of rights[12], the thesis of the exclusive treatment of slaves as a thing in Roman
law was reproduced in the older textbooks on Roman private law[13]. Described, in those textbooks, legal and social status of slave[14] was shown without the dynamics of change aimed to improve not only the
social situation, but also slave’s legal situation. It should be noted that at
present the situation is gradually changing and the Romance studies literature
increasingly shows the process of empowerment slave, pointing to areas in which
the law granted certain powers to the slave[15].
2. – The slave as a thing in the light of law
sources
The
preserved literary and legal texts, the numerous statements can be found that
testify to the fact that the slave in the Roman private law was classified into
the category of material things (res). Such legal status of slaves was
independent from the method of division of things. The first analyzed text
written by Gaius mentioned the division of things on material (corporales) – it means the things which
can be touched and intangible (incorpolares)
– it means things which cannot be touched, for example law.
Gai. Inst.
2.13: <Corporales> hae <sunt>, quae tangi possunt, veluti fundus
homo vestis aurum argentum et denique aliae res innumerabiles.
According
to the M Talamanca, the cited fragment of Gaius’ text is a part of systematics
of things made in accordance to the schema of genus-species[16]. The things (res) are the
main category (genus) and the certain
groups of things (species) make the
nature of things more understandable. The specific characteristic of the things
included in the category corporales
is the ability to be touched and therefore they must be in the materialized
form[17]. To this group of things Gaius includes: lands, slaves, clothes,
silver, gold and many other things which cannot be counted. This collection of
material things made by Gaius has illustrative not a comprehensive character.
Another
and historically older division of things, which testifies about the primary
classification of slaves to the categories of thigs is a distinction made
between res mancipi and res nec mancipi[18].
Titul. ex corp. Ulp.
19.1: Omnes res aut mancipi sunt aut nec
mancipi. Mancipi res sunt praedia in italico solo, tam rustica, qualis est
fundus, quam urbana, qualis domus item iura praediorum rusticorum, velut via,
iter, actus, aquaeductus item servi et quadrupedes, quae dorso collove
domantur, velut boves, muli, equi, asini. Ceterae res nec mancipi sunt.
Elefanti et cameli, quamvis collo dorsove domentur, nec mancipi sunt, quoniam
bestiarum numero sunt.
The
classification of things as res mancipi
and nec mancipi had primarily the
economical meaning. The slave played an important role in the development and
the functionality of Roman economy in time of the Roman Kingdom and in time of
the Roman Republic[19]. In addition to material things (corporales),
including slaves, this category of things also included rights, for example:
land easements (right of passage, transit and carrying water).
Strengthen
the view in contemporary Romance doctrine, according to which the slave is the
thing can find their grounding in another text, this time written by Paulus.
Paul. 11 ad ed. (D. 4.5.3.1): Emancipato
filio et ceteris personis capitis minutio manifesto accidit, cum emancipari
nemo possit nisi in imaginariam servilem causam deductus: aliter atque cum
servus manumittitur, quia servile caput nullum ius habet ideoque nec minui potest.
The
Paulus’ fragment of text is about the legal consequence of emancipation. An
important element of this institution was apparent sale filius familias, in order to produce legal effects in the form of
liberation. The triple sales of son, in order to release him from his father's potestas, was made possible by the
adoption of a legal fiction involving the temporary transfer him to a state of
slavery. The son could be sold only if he became a fictional slave - … cum emancipari nemo possit nisi in imaginariam
servilem causam deductus. Therefore, the liberation of filius familias was accompanied by capitis deminutio, it means by the diminution of his rights - status libertatis[20]. In this context, at the end of this text there is a fragment about the
liberation of slave through the apparent sale - … cum servus manumittitur. In such case, there was no situation with
the diminution of right (capitis
deminutio) because the slave is no subject of any rights is the in terms of
privet law - … servile caput nullum ius
habet ideoque nec minui potest.
3. – Is it really truth that a slave was
treated as a thing?
In
the quoted earlier passage written by Gaius Inst. 2.13, the slave was described
by the term homo, hominis. According
to the Heuman-Schekel’s dictionary, the term homo, homines, in legal texts, could be used as the name of various
designates, inter alia, husband - quod si
mulier aut homo perierit (D. 48.19.5.38) or legate - homo legatus (D. 30.45.2)[21]. But in source’s text, the term homo
is used as a synonym of term servus[22]. In this meaning, it was used in the process formula[23]. However, the term homo, hominis
is also used as the synonym of the term human being, independent from his or
her civil status or gender.
The
Romans division of people into freemen and slaves had its source in the
constituted law, especially in ius
gentium, which by Ulpian was the law applicable to all people - Ius gentium est .… hoc solis hominibus inter se commune sit[24]. The institution of slavery belonged to the constituted order
regardless of the source of slavery[25]. Hence, the word humanus is
etymologically derived from the term homo
and it means a human being or just a man[26].
In
the preserved texts of law, there is yet another concept to denote a human,
namely persona, - it means a person.
It should be noted, however, that modern, abstract understanding of this
concept was alien during the republic and early principate. However, together
with division of law made by Gaius into the law belonging to personae, res and actiones, the
concept of persona has juridical
meaning[27]. Therefore, Tafaro writes that Persona diventò certamente sinonimo di ‘uomo’, visto da angolazioni
diverse, ma espresse concetti più ampi e complessi di quelli normalmente
compresi nel termine homo[28].
The
synonymous character of terms homo
humanus and persona meant that
they were used by the Roman jurists in different contexts connected with the
term of human being, sometimes alternately and not always accurately clarifying
their meaning and content.
The
explanation and clarification the semantic relationship between concepts homo humanus and persona allows us to understand the further course of the
discussion associated with the legal situation of a slave in ancient Rome.
Gai. 1 Inst. (D.
1.5.3): Summa itaque de iure personarum divisio haec est, quod omnes homines
aut liberi sunt aut servi.
In
his text Gaius states that according to the law concerning persons, people (homines) are divided into the free (liberi) and slaves (servi). Therefore, regardless of the legal status (de jure personarum) eventually all are
human (homines). The classification
indicates the existing knowledge that this division is secondary to the basic
category (genus), which is a man. Thus, the Romans eventually believed that the
slave was also a human being. Only in the light of the rules of private or
public law, some people have been deprived of rights or the rights belonging to
other people were limited. The slaves as res
mancipi were belonging to the first group (humans deprived of rights). The
second group (humans with the limited rights) was consisted of those who had
limited their legal status because of status
civitatis or status familiae[29].
The Romans were aware
that the slaves belong to the category (genus)
described as a man (homo). Therefore,
they used a fairly wide system of liberations motivated such actions by the
fact that this is the original state of all people.
Ulp. l. 1 Inst. (D.1.1.4): Manumissiones
quoque iuris gentium sunt. Est autem manumissio de manu missio, id est datio
libertatis: nam quamdiu quis in servitute est, manui et potestati suppositus
est, manumissus liberatur potestate. Quae res a iure gentium originem sumpsit, utpote
cum iure naturali omnes liberi nascerentur nec esset nota manumissio, cum
servitus esset incognita: sed posteaquam iure gentium servitus invasit, secutum
est beneficium manumissionis. Et cum uno naturali nomine homines appellaremur,
iure gentium tria genera esse coeperunt: liberi et his contrarium servi et
tertium genus liberti, id est hi qui desierant esse servi.
The
fragment of Ulpian’s text about the liberations includes a relatively abundant
information to clarify the treatment of slaves, not so much from the point of
view of their position in society, but the position in light of the provisions
of private law. At the very beginning this lawyer indicates that the
emancipation (liberation) of slaves was the institution of the law of nations.
This qualification is a consequence of recognizing the slavery as the
institution of ius gentium, as it is
referred to in the words - … cum servitus
esset incognita: sed posteaquam iure gentium servitus invasit, secutum est
beneficium manumissionis. Because of belonging to the same genus, regardless of the legal status of
individuals, all men have the same nature - Et
cum uno naturali nomine homines appellaremur … .
Another
Ulpian’s text is the quintessence of the current reflections on the legal
status of a slave.
Ulp. 43 ad Sab. (D. 50.17.32): Quod attinet
ad ius civile, servi pro nullis habentur: non tamen et iure naturali, quia,
quod ad ius naturale attinet, omnes homines aequales sunt.
The
slave, in the private law – it means constituted law, did not have any rights
and from this point of view, the slave was classified as a thing. However,
thanks to separation of the natural order and the order of constituted law (ius gentium or ius civile), the Romans strongly believed that in this natural
order every man is free and equal - … omnes
homines aequales sunt[30].
The
social or religion position of slaves was the consequence of recognition by the
Romans the slaves as free men in the natural order. While the relationship of a
slave man with a slave women was not considered as matrimonium within the meaning of ius civile, the contuberium was
clearly distinguished from concubinage. In the preserved sources of law, there
are numerous regulations concerning this relationship. Contuberium therefore had legal meaning to the legal and social
order. In the poorer families, children up to seven years generally have not
been divided into born free, children freedmen or born of a slave woman.
According to S.F. Bonner, the slaves’ children were kept together with the free
born children and they played and were educated together[31]. The slaves had the right to participate and to watch public spectacles
in amphitheaters[32]. This possibility arises from the provisions contained in the lex Roscia theatralis - the Act coming from
67 BC. Then, the rule on occupying the seats in theaters (adsignatio) during public shows were introduced. These provisions
were then replicated in the municipal laws, including lex Irnitana cap. 81 [33], lex Ursonensis cap. 70[34] or Tabula Heracleensis, ll.
135-141 [35].
The
slaves also were able to hold certain offices or public functions (servi pubblici), for example in lex Irnitana cap. 78 stated that … quos
ser vos publicos cuique negotio praesse placeat (ll. 34).These slaves are
the most frequently performed its task in such departments of the public
administration municipium as: archives, office accounting or in the law firms
prepares documents for the current officials or Decurion. They could also work
in the public baths, cleaning latrines, maintaining roads and other public
infrastructure facilities: in ea
ministeria quae non longe a poena sint. Solent enim eiusmodi ad balineum, ad
purgationes cloacorum, item munitiones viarum et vicorum dari[36]. Sometimes, the public slaves attained high public officials dignity,
and thus gained prestige and importance in local communities, for example in
Asculum, the slave bore the title dispensator
arcae summarum[37].
4. – The
cases of recognition of slaves as a subject in private law
The theoretical and dogmatic assumptions about the legal situation of
slaves in ancient Rome, which were presented above, do not correspond with
economic development and above all, with pragmatism of Romans. The numerous
sources show that slaves were used not only to perform simple, menial work, but
they also performed creative work, including management in the area of economic
and social activity. Dynamically changing economic situation, especially at the
end of the republic and later, forced to grant to slaves the legal capacity to
carry out some of the legal actions. They gained gradually various forms of
legal protection, despite of the principle expressed by …. - In personam servilem nulla cadit obligatio
and often repeated in the Roman Law textbooks.
The
basic impulse to the gradual empowerment of the slave was to create a legal and
factual possibility to entrust him peculim,
which is the separate from the owner property which was administrated by slave
(libera administratio) by carrying
out activities such as emptio venditio
or locatio conductio[38]. Robleda has the similar understanding according to which about the
forming of slaves subjectivity in ius
civile, we can speak only in the perspective of peculium, which is separated property by the owner, and then
transferred to the slave in use or administration[39]. It is worth noting that the oldest sources speaking about peculium managed by slaves come from the
third century BC[40].
Ulp. 17 ad. Ed. (D. 6.1.41.1.): Si servus
mihi vel filius familias fundum vendidit et tradidit habens liberam peculii
administrationem, in rem actione uti potero.
The
above Ulpian’s passage shows that slave could freely dispose of his assets,
which means he could take legal actions as to increase the entrusted assets[41]. A potential agreement (voluntas)
to make legal actions with the respect to individual components of the asset,
the slave received from dominus in
the very fact of entrusting him peculium.
In the above text, Ulpian clearly indicates that the slave could sell
individual elements of peculium. As
part of libera administratione, the
slave could use components of peculium
at his own discretion, for example: to give them to a third party for use (comodatum), for a lease, deposit or
pledge (pignus).
In
view of the possibility of a fairly broad dispose of components of peculium by the slave, the question
about the limits of libera administratio
is raised The Robleda’s point of view can be used here that servus could not diminish the value of
the obtained estate[42]. He must therefore keep to its owner the components of the asset or its
equivalent, especially if they were expendable things. Therefore, the slaves
administrated peculium was not be
able to make donationes inter vivos
or mortis causa disposition[43]. The slave he could however spare the one’s debt to peculium only in the case if their
property gained something in return. If debt cancellation by the slave does not
lead to a makeweight property of peculium,
such action was not considered valid[44].
Mousourakis
rightly believes that the legal situation of a slave during the Imperial period
was further shaped by caesarean legislation, not only in civil law but also in
a criminal trial, where a slave could perform certain legal actions, especially
the report on its owner when he participated in a conspiracy against the
emperor, against the people closest to emperor, from family or against senior
officials[45].
In
the Dominate period, the far-reaching stratification of society, including the
freemen, has been made. Quite a large masses of free men actually been reduced
to the status of almost slavish. Other groups have the status of belonging to honestiores or potentiores and much worse was given to people belonging to humiliores or tenuiores. The latter class consisted of workers who were free men,
traders, lower administrative staff in municipalities, agricultural workers of
the colonies. In time, this group was growing with the new members, such as:
refugees from areas of fighting, monks and hermits and finally foreigners
settled in the territory of Rome[46]. Thereby, the legal situation of legal entity, being one of the actors
of economic activity, became less important. Also, the migration of people to
large urban agglomerations had an impact on the social, political, economic and
legal changes. As a result of the already formed the nucleus of mass society,
the origin of man, in the light of the needs of the labor market or to increase
trade, was of secondary importance.
In that perspective, the gradual improvement of social and legal
situation of the slaves was seen. We cannot however to see this process in the
point of view of current standards used in civil law or in the concept of human
right. Such concept was not known in the ancient world. Therefore, P. Stein rightly considers that the status of people in
ancient Rome was very diverse, and the boundary between free men and slaves
slowly blurred[47].
5.
– Summary
Widely in the literature, especially in the textbooks, it is assumed
that a slave in ancient Rome, belonged to the category of things - res. Such a classification had the
economic justification, therefore, slaves were counted among the category of res mancipi – it means the things which
are important for the development and functioning of the Roman economy in the
time of Republic and the period of Principate. The Romans were aware, however,
that in the natural order (ius naturale),
all people are free, while the division into the free (liberii) and slaves came from the norms of positive law (ius gentium). Therefore, in the Roman
law there were many ways of liberations, which is the ability of every slave to
return the original state of man. Consequently, the slave in the legal system
did not have the legal capacity nor the capacity to act. All commitments made
by slaves had the character of natural liabilities (obligationes naturales).
Together
with the economic development, the emergence of new forms gaining wealth
already in the republican period, especially because of shifting away from an
economy based on agriculture, the slave was gaining a stronger and stronger
position in the trade. The manifestation of this new trend in the development
was to equip the slaves in peculium.
Thanks to that changes, the slave could engage in the trading of civil law,
making numerous legal actions that have calved liability of the owner on the
basis of one of actiones adiectitiae
qualitatis or noxical liability in the event of committing a tort. Thus, in
practice, also in the law practice, it began to move away from the original
principle of depriving the slave of any legal capacity in the field of civil
law (res) for becoming the active
actor of trade, resulting in de facto slow, but gradual empowerment of slaves.
This process is quite clearly evident in the post-classical time, when in the
principate period the quite clear dividing line between free men and slaves
were significantly blurred.
The
final conclusion of this study must therefore conclude that the quite clearly
and widely formulated in the textbooks thesis, according to which a slave in
ancient Rome was the only thing and did not have the legal capacity nor the
capacity to take any legal action, should be slowly displaced. This is because,
this thesis is not entirely true, and does not correspond to the legal state of
ancient Rome and does not correspond with contemporary sensitivity to human
rights, especially for its freedom and equality. Without changing the source
texts, we must adjust the massage about the Roman law to modern concepts and to
the social, political and legal needs in order to preserve the Roman law from
total oblivion.