CASE 2: Slavery and Freedom

D. 1.5.3 (= Gaius, Institutiones 1.9)

Summa itaque de iure personarum divisio haec est, quod omnes homines aut liberi sunt aut servi.

D.

(pr.) Libertas est naturalis facultas eius quod cuique facere libet, nisi si quid vi aut iure prohibetur. (1) Servitus est constitutio iuris gentium, qua quis dominio alieno contra naturam subicitur.

(Gaius in the first book of his Institutes)

The foremost distinction in the law of personal status is this, that all human be­ings are either free or slaves.

(Florentinus in the ninth book of his Institutes)

(pr.) Freedom is the natural ability to do what one wishes, except if it is pre­vented by coercion or by law. (1) Slavery is an institution of the law of nations, whereby, contrary to nature, a person is made subject to another’s ownership.

1.      “The Foremost Distinction.” No division is more stark in the Roman world than that which divides free persons (including Roman citizens, but also free noncitizens) from those who are slaves. As a matter of basic legal principle, free persons cannot be owned, while, as Florentinus emphasizes, ownership is the very essence of slavery. Slaves are thought to have constituted about a sixth of the population of Roman Italy and perhaps a tenth of the Empires total population of fifty to sixty million persons.

2.      “Contrary to Nature.” Florentinus, in defining slavery, observes that it arises as a result of a widely prevailing human law (the “law of nations”), but that this law is contrary to a more fundamental law of “nature” whereby all per­sons are naturally free; see also Case 5 below, and also Ulpian, D. 50.17.32: “Insofar as civil law is concerned, slaves are deemed nonpersons; but not so in natural law, since, insofar as natural law is concerned, all men are equal.” (Sound vaguely familiar?) Do observations of this type necessarily amount to a moral condemnation of slavery? Are any legal consequences likely to result from what Florentinus and Ulpian say?

3.      “The Natural Ability to Do What One Wishes.” How plausible is Florenti- nus's definition of freedom, especially in the context of a slaveholding society? From a legal perspective, it may seem reasonable to hold that “natural” free­dom is inevitably limited by legal constraints; but does it also make sense to hold that freedom may be limited by nonlegal or even illegal coercion? Do you think that this could be simply the jurists recognition of a grim underly­ing social reality, in which members of a social elite often prevailed simply be­cause of their money, power, or influence?

4. How Bright Is the Line? Florentinus writes as if the distinction between free person and slave was defined by a “bright line.” This may well have been true for ideological purposes, but within the Roman world it is more questionable as a matter of fact. One of the issues that you should be sensitive to as you read these Roman legal sources is whether ordinary Romans would have ex­perienced the legal distinction as a material one affecting their lives.