Slavery and Society
(1) The Nature of Slavery
We are told in the Corpus Iuris Civilis· that slavery is a status that is ‘contrary to the law of nature'.[418] This should not mislead us into thinking that the Romans were very concerned with slaves' welfare or with the humanity that they had in comÂmon with their masters.
Quite the contrary: the Roman jurists asked few moral questions about slavery,[419] and certainly never questioned its legitimacy. Slavery was a universally accepted fact of the ius gentium, the law of nations, and the idea of slavery as being contrary to nature should be understood simply as being based on an observation that human beings are by nature free, and can only be made slaves through positive law.From this, it might be thought that there would be little in this topic for the modern lawyer, given that Scots law has never recognised slavery, whether by the imposition of slavery on someone within Scotland[420] or even by recognising as a slave someone enslaved outside Scotland and then brought into the country.[421] Even here, though, there has been some influence. It is now a statutory offence to hold a person ‘in slavery or servitude'.[422] In a decision of the High Court of Justiciary on this offence, it is observed that this was also a crime under the common law, and implies that this offence was derived from Roman law.[423] Still, all told, this is not an area of Roman law that has influenced Scots law particularly strongly.[424] However, in countries (such as the United States) that have recognised slavery into modern times, Roman slave law has been very influential.[425]
In total contrast with the modern world, slavery was completely accepted in the ancient world, as indeed it has been in probably most societies through hisÂtory. Rome was certainly no exception, and for the Romans slavery had fundaÂmental social and economic importance.
What, then, is slavery? In simple terms, a slave is a human being who is subject to another person's ownership.[426] A slave, then, is an item of property, able in principle to be used (or abused) according to the whim of the slave's owner. As property, slaves themselves had and could have no rights of their own of any kind, any more than household pets or livestock were capable of holding rights.(2) The Role of Slaves
There is a paradox here, however. While the law said that slaves were things rather than persons, the Romans could hardly have avoided being aware that slaves were nonetheless human beings with the full range of abilities possessed by human beings. Among the Romans, slaves filled a wide range of functions. We should not think of slaves simply as being unskilled or semi-skilled agricultural labourers or household servants. While very many slaves did fill such roles, others had functions requiring a high level of skill and carrying considerable responsiÂbility, such as medicine, teaching and business management. It may be supposed that such skilled slaves could expect better treatment from their owners. We shall see more on the treatment of slaves below.
B.