OUP (2023) h/b 265pp £54 (ISBN 9780197687345)
The notion of equity (a form of what is known as ‘legal fiction’) is alive and well in the English legal system. Its purpose is to deliver a fair result in a case where the law is not flexible enough to deal with the specific situation at hand. Aristotle (d. 322 BC) was the first person we know of to identify the concept, brought into play (as he said) in relation to cases where the ‘abstract formulations’ of universal law could not deal with ‘the stuff of human behaviour’. The notion was eagerly taken up from the 3rd C BC by Roman jurists (whose function was not to make the law but to argue about its implications) in relation to any number of situations, one of which is the subject of this book: the status of slaves.
It is common knowledge that a slave in the ancient world had no legal standing of any sort whatsoever: he was at the mercy of his master. Up to a point, Lord Copper. What this book does is to provide, in a world where up to 90% of the population lived at or near subsistence levels, a detailed study of a single, complex phenomenon: the use of legal fiction by Roman jurists to allow those normally treated as disempowered—in this case, slaves and women—to engage in commerce and therefore to own and deal in money and property, and in the early empire to play a major role in the imperial court, with, in both cases, the prospect of making huge fortunes for themselves.
The situation arose from the fact that the wealth of the Roman senatorial elite lay in its ownership of vast acreages of land. Their duty and reputation lay in caring for and exploiting it in the interests of the family and of the Roman people. They were not allowed to dirty their hands in sordid ‘business’. But there was big money to be made from business. So their slaves, and in some cases women, did it for them. C. admits that one cannot come up with any firm statistics about the numbers involved (giving how few the elites were, the numbers would not be massive), but insists that the frequency with which these issues were discussed in legal texts, imperial judgements etc. (‘there is scarcely a title of the Digest in which [the slave] does not figure’), both in Rome and across the empire, indicates the importance of the problem.
Roman lawyers were quite upfront about it. Ulpian described the situation like this: ‘a slave cannot really owe or be owed anything: when we Roman jurists [discussing ‘slave’s debts’] misuse this term, we are recognising reality rather than referencing a formal obligation of the civil law’. Gaius took it for granted that ‘adult women handle their business matters for themselves’. The evidence that C. produces for such activity is overwhelming, and the elegance and humanity with which jurists dealt with the myriad resulting problems caused by such legal fictions is striking (the copious footnotes carry the Latin and Greek of the many texts C. discusses).
Slaves, then, being members of the senatorial family and acting quite legally on behalf of the pater familias, operated autonomously, without reference to their masters’ instructions—a condition that limited the slave owners’ liabilities—to run the business side of everything. Further they could reach an agreement with their master about any share of the profits they might be given, as well as make private deals on their own behalf, take part in legally recognised joint ventures (societates) and even operate banks (whether the master knew it or not), an activity that required specialised accounting and record-keeping. The result was that Pliny the Elder could claim that many ex-slaves were wealthier than Crassus: one such owned 4,116 slaves, 3,600 pairs of oxen, 257,000 other animals and 60 million ss in cash. These earnings were the slave’s peculium (cf. pecu ‘cattle’ and pecunia), i.e. personal property. In strict law this should have been impossible: but as Ulpian said, lawyers ‘closed their eyes’ (coniuentibus [cf. ‘connive’] oculis) to the situation. Legal fiction ruled, lubricating the whole entrepreneurial system in Rome, without wrecking the legal system. That said, it does seem that even after manumission, the libertus usually remained closely tied into the circles in which his master moved.
The legal system became even more fascinatingly fictive when free Romans realised that they were missing out. Since there was nothing stopping them selling themselves into slavery and involving themselves in commerce too, many leapt at the opportunity, often with a condition attached: that after so many years the master would agree to them buying themselves back into freedom. C. suggests that most of the manumitted slaves that we hear of fell into this category.
By the same token female petitioners are addressed in 650 of 2,500 rescripts surviving on private legal matters in the Codex. Free and slave alike were enabled to become involved in commercial enterprises great and small, from mercantile and marine business, financial transactions, tax collecting, banking and real estate to one-woman operations as doctors, advocates, secretaries, accountants, traders and so on. The walls of Pompeii testify to one Faustilla, who advanced loans secured on property, with high interest rates. Even guardianship of women, allowing men to control their assets and disposal of property, became in practice of no significance. As a result, one scholar concluded, ‘the institution of slavery [at Rome] allowed fuller exploitation of female human capital as compared with [the situation in] later Europe’.
C. finally turns to the role of slaves in the imperial administration. Here too, especially in the first century AD, but declining thereafter, imperial slaves played as important a part in imperial life as senatorial slaves had in commercial life, and for the same reasons. Their lives as slaves depended on that of the emperor: they could be relied on for unwavering loyalty and commitment. The financial consequences for them were equally dramatic. Hardly surprising, they were despised by the elites, especially those in or close to the inner ring of the imperial aula. Pliny the Younger certainly gave them both barrels (but long after they were no longer in power, of course). When an inscription told him that Claudius’ servile Greek advisor Pallas had declined a senatorial offer of 15 million ss for his services, but ‘was willing to accept the distinction’, he wrote (Epistles 7.19) ‘This inscription more than anything makes me realise what a ridiculous farce it is when honours can be thrown away on such dirt and filth, and that crook could presume to accept and refuse them, all with a show of setting posterity an example of moderation.’
It is important to point out that, while this review may well present supporters of Classics for All with a new and, frankly, astonishing aspect of the ancient world, the importance of this book for academics, which cannot be overestimated, lies in the expertise with which C. selects from, and the crystal clarity with which he analyses, the mountains of evidence that the jurists and inscriptions have left on the topic. It all adds up to a fascinating and extremely important contribution to our understanding of the nature of slavery in the Roman world.
There is a 64-page bibliography, a general index and an index of passages cited.