During my time as a tutor it became more difficult to teach the Roman law of slavery.
I can best explain how resistance to the subject has grown, that the students saw it as a kind of courtier discipline. Why should one pay attention to the writings of lawyers, for example on the collection of debts against a master for the actions of his slave, when the whole institution of slavery is a moral shame? It’s like hearing a servant mutter about the exquisite lacing of the emperor’s new clothes when he is actually naked.
The problem with this view is that the lawyers gave us the most refined account of slavery in any civilization. By studying it, we learn, for example, how the moral system of the Romans differs from ours and where those differences come from. We can also learn how a slave society tries – and fails – to replicate the institutions of a free society, or how it responds to similar commercial challenges or social changes. When we stop looking seriously at the past, we make it harder to understand and contextualise our own commitments – including our commitment to freedom.
Samuel Goldman rightly notes that in contemplating the future of freedom we cannot help but contemplate its past as well. The lawyers even correct some of the stories we tell each other about our place in history. Given the development of the market in ancient Rome and the level of education and wealth achieved by, for example, many urban slaves, a scholar of Roman law can explore the limits of a Panglossian liberalism that suggests that civil liberties must naturally result from economic freedom.
Of course, there is another point that the past is not part of the present, but should be approached on itself and on its own terms. If we don’t, we lose imaginative access to it. I used mosaics or frescoes of dark-skinned Roman citizens who bought light-skinned slaves. A slave of either sex had a higher price if he was red-haired. The Romans preferred ginger, not blondes.
Along with the contempt of my students, the problem associated with it was unlearning the American understanding of slavery. No, the Romans did not believe that their slaves were morally weak or racially inferior or in any way less human. Slaves were subject to law; Service status was a piece of paper and could often be converted into citizenship. Every Roman jurist viewed slavery as “against nature,” something that emerged – like horses that needed to be broken and dogs that needed to be trained – because humans lived on earth, established governments among humans, and then made laws. Aristotle was the one who argued that some people are “natural slaves”.
Sometimes the first glimmers of what later became natural rights have Roman origins, but that is wrong. Rome’s thoroughly modern legal system was completely positivistic. The law of nature is Greek, so Goldman’s observation that “Athens and Jerusalem” does not encompass all of Western heritage makes sense. Christianity took far more from Greek philosophy than from Roman law. Indeed, there is good evidence that the only piece of Roman law that survived ancient times was its horror at consanguinity. Europe has long been weakening consanguinity in favor of larger, non-biological societies. The Corpus Iuris Civilis, on the other hand, was found in the stacks of the University Library of Bologna about 600 years after the fall of the Western Empire. Rome overwhelmed our way of thinking about the world when, as during the Scottish Enlightenment, we invoked its law. When Adam Smith wants to beat up primogeniture, he uses Scotland’s deep roots in Roman law.
In ancient republican politics, it was entirely possible to be free (to have freedoms) but to be “dominated” or subject to others within the family.
Slaves, of course, were unequal in their talents – an educated Greek-speaking teacher for one’s own children was more valuable than a Briton without a newsletter – but so were Roman citizens. Equality in the eyes of God is a central tenet of the Christian tradition. It is something that sets European Christianity apart from the great civilization that preceded it. To a pagan Roman, you were a better person if you were beautiful, clever, or brave. And if any of these traits were associated with Roman citizenship, even more subtle. But they don’t have to be: As Goldman notes for the ancients, “the majority of men were born to serve.”
The Romans are your father and they say life is not fair.
The Roman legal literature reveals little on this point. My example is Ulpian, who deals with unlawful property damage. According to the Lex Aquilia, an owner is entitled to compensation for a killed slave. But what if the dead slave were the owner’s child, born to a slave with whom he had sex? Was the owner entitled to higher compensation to reflect his particular preference for this slave?
No, says Ulpian, he can only get the market price back for the slave. Losses under Aquilian law must be assessed according to an objective standard. A subjective representation of the personal preference between father and child would be unfair for other slave owners. See already rule of law: equal treatment as cases. At this point in human history, it was only present in one civilization. See also the cold, hard eye of another moral system, one that we forget, is as refined and carefully worked out as our own.
Understanding other moral systems is important to this day. An important separation in political theory is, for example, that between “liberal” and “republican” ideas of freedom. The liberal term is usually given as a fairly simple negative sphere of freedom in Berlin, while the republican term is treated as a state of “non-rule” (essentially a modified version of positive freedom that seeks to avoid the problem of general will). Republican freedom usually includes a certain right to resources.
Republican theorists almost always claim their ideas are rooted in antiquity, while liberal theorists tend to anchor themselves in the Enlightenment and intellectual milieu of the 18th century. Both groups present their claims in an ahistorical way.
The problem is that for the ancients, libertas were only one of three aspects of the status of an individual. It was a condition not to be a slave: to be recognized by the state as a person with independent agency, not a thing. The other two components were civitas and familia.
Civitas regulated people’s public status: were they citizens or not, and if not, what public rights and duties did they have? Roman citizenship brought with it all kinds of club goods, not only in terms of political participation but also in terms of resources. Sometimes people accuse the Romans of developing the first welfare state. Almost inevitably they forget to realize that the welfare in question was always only for the citizens.
Familia regulated a person’s status under private law: Were they in the power (Potestas) of a superior or in their own power (Suis Iuris)? It is worth remembering that the old family was a corporate entity, not a nuclear, emotionally intimate family in the modern sense. Sometimes relationships were handled that are now managed within companies and according to trade, labor and agency rules. Though it might as well be modern – the status of Roman women was high, it wasn’t achieved until well into the 20th century in most of the developed world. It is difficult to explain to students that while Christianity was an improvement in the status of women as women, it was not for women with Roman citizenship. Once again the teaching: Most people are born to be submissive and this says nothing else about them.
In the republican political concept of antiquity it was quite possible to be free (to have freedoms) but to be “dominated” or subject to others within the family. There was also nothing contradicting a free poor or a rich slave or significant social and sexual freedom, but no access to political participation or representation.
The Enlightenment authors were fully aware of this: like Goldman, they understood that freedom is not only pluralistic but also relational. They focused their efforts on freedoms because that was the aspect of human status that they considered most deficient in their societies at the time. The problem we have now is that the “liberal” theorists are focusing on freedoms at the expense of other status forms, while the “republican” theorists are trying to summarize everything in one concept. The old system does not take this seriously enough.
Not only do we need to think about analyzing different elements of a “pluralistic” freedom, but also understand how freedom relates to other aspects of common life that have been downplayed for centuries but remain vital.
That means: civitas is very much behind in contemporary debates about immigration and cultural values. Should immigrants (or refugees) be deprived of civil rights or citizenship due to terrorism or refusal to assimilate? Countries that draw a hard, clear line between citizens and non-citizens are not only doing what the Romans did, but also rejecting parts of the universal personality, one of Goldman’s “freedoms of the modern West.” Australia is doing this, it seems to be working, and other countries want to copy. Australia even sends unwanted people to remote Roman-style islands.
In the meantime, the rise of the modern enterprise, its leadership class and discretionary private governance has revived the debate on issues very similar to the old debates about familia: Who is it? What do you give up of your personal autonomy in order to become a member? What are their rights and obligations? Under what circumstances can they be thrown away? Employers who fire workers for their views are not a problem of libertas or civitas, but familia. It’s also a reminder to beware of modern day companies that claim to treat their employees “like family”. As my father used to say, “It only works when the family is happy. For everything else you need a law. “
If we focus on Roman slavery only as a moral aberration (behavior that involves confusing it with the Antebellum South) and so limit ourselves to looking down at our relative moral superiority, the possibility of better understanding ours goes lost modern freedoms. The emperor actually wears clothes – the point is to ask why they have gone out of style in the modern world.