Originalism was the way Constitutional law was done until the progressive era came up with the idea of the living constitution.
During my time as a tutor, it became more difficult to teach the Roman law of slavery.
The closest I can come to explaining how resistance to the subject grew is that students regarded it as a kind of courtier’s discipline. Why pay attention to the writings of the jurists on, say, the recovery of debts against a master for the actions of his slave, when the whole institution of slavery is a moral disgrace? It’s like hearing out a manservant’s mutterings on the exquisite lacing of the Emperor’s new clothes when, in fact, he’s naked.
The problem with this view is that the jurists gave us the most sophisticated account of slavery in any civilisation. By studying it we learn, for instance, how the moral system of the Romans differed from our own and the origin of those differences. 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 at the past with seriousness, we make it more difficult to understand and contextualise our own commitments—including our commitment to liberty.
Samuel Goldman is right to note that, when looking to the future of liberty, we can’t help also looking at its past. The jurists even offer correctives to some of the stories we tell each other about our place in history. Given the market sophistication of Ancient Rome and the level of education and wealth attained by many urban slaves, for example, a scholar of Roman law can explore the limits of a Panglossian liberalism which suggests civil freedoms must naturally follow from economic liberty.
Of course, there’s also the wider point that the past does not belong to the present, but to itself, and should be addressed on its own terms. If we don’t do that, we lose imaginative access to it. I found myself resorting to mosaics or frescoes of dark-skinned Roman citizens purchasing light-skinned slaves. A slave of either sex commanded a higher price if red-headed. Romans preferred gingers, not blonds.
Along with my students’ disdain was the related problem of unteaching the American understanding of slavery. No, Romans did not think their slaves were morally weak, or racially inferior, or in any way lesser forms of the human. Slaves were subordinate in law; servile status was a piece of paper and could be changed, often into citizenship. Every Roman jurist considered slavery “contrary to nature,” something that emerged—like horses that had to be broken and dogs that had to be trained—because human beings lived on the earth, instituted governments among men, and then made laws. Aristotle was the one who argued that some people are “natural slaves.”
Sometimes the first glimmerings of what later became natural rights are given Roman origins, but this is mistaken. Rome’s thoroughly modern legal system was wholly positivist. Natural law is Greek, which is why Goldman’s observation that “Athens and Jerusalem” does not capture the whole of the Western inheritance makes sense. Christianity took far more from Greek philosophy than it did from Roman law. Indeed, there’s good evidence that the only bit of Roman law that survived antiquity was its horror at consanguinity. Europe has been weakening blood kinship in favour of larger, non-biological social orders for a long time. The Corpus Iuris Civilis, by contrast, was found mouldering in the stacks at Bologna University library some 600 years after the fall of the Western Empire. Rome overwhelmed our way of thinking about the world once we called upon its law, as during the Scottish Enlightenment. When Adam Smith wants to beat up primogeniture, he uses Scotland’s deep roots in Roman law to do so.
Slaves were also, of course, unequal in their talents—a literate Greek-speaking tutor for one’s children was more valuable than an unlettered Briton—but then so were Roman citizens. Equality in the eyes of God is a core tenet of the Christian tradition. It is something that marks European Christianity off from the great civilisation that came before it. To a pagan Roman, if you were beautiful, or clever, or brave, you were a better person. And if any of those traits happened to be coupled with Roman citizenship, even finer. But they need not be: as Goldman observes, for the ancients, “the majority of human beings were born to serve.”
The Romans are your dad saying, life is not fair.
Roman juristic literature is full of revealing little asides on this point. My go-to example is Ulpian dealing with wrongful damage to property. Under the lex Aquilia, an owner is entitled to compensation for a killed slave. But what if the dead slave was the owner’s child, born of a slave woman he had sex with? Was the owner entitled to greater compensation to reflect his special fondness for that slave?
No, says Ulpian, he can only recover the market price for the slave. Loss under the Aquilian law must be assessed by an objective standard. A subjective accounting of personal fondness between a father and child would be unjust to other slave-owners. See, already, the rule of law: treat like cases alike. At this moment in human history, it was present in only one civilisation. See, also, the cold, hard gimlet-eye of a different moral system, one we forget is as sophisticated and carefully worked through as our own.
Understanding other moral systems is still important today. A major division in political theory, for example, is that between “liberal” and “republican” notions of freedom. The liberal notion is usually given as a fairly straightforward Berlinian negative sphere of freedom, while the republican notion is treated as a state of “non-domination” (essentially a modified version of positive liberty, which tries to avoid the problem of the general will). Republican freedom usually entails some right to resources.
Republican theorists almost always claim their ideas are rooted in the ancient world, while the liberal theorists tend to anchor themselves in the Enlightenment and the intellectual milieu of the 18th century. Both groups present their claims in an ahistorical way.
The problem is that for the ancients, libertas was only one of three aspects of an individual’s status. It was the condition of not being a slave: to be recognised 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 sort of public rights and obligations did they have? Roman citizenship brought with it all manner of club goods, not just in terms of political participation but also resources. Sometimes people accuse the Romans of developing the first welfare state. Almost inevitably, they forget to note the welfare in question was only ever for citizens.
Familia regulated an individual’s private law status: were they in the power (potestas) of a superior or in their own power (suis iuris). It should be remembered that the ancient familia was a corporate entity, not a nuclear, emotionally intimate family in the modern sense. It sometimes handled relationships that today are managed within corporations, as well as by commercial, labour and agency rules. Although it could be thoroughly modern too—the status of Roman women was high, its equivalent not achieved in most parts of the developed world until well into the 20th century. It’s tricky to explain to students that while Christianity may have represented an improvement in status for women qua women, this was not the case for Roman citizen women. Once again, the lesson: most people are born to subordination, and this does not say anything else about them.
So, in the republican political imagination of the ancient world, it was quite possible to be free (to have libertas), but to be “dominated” or subject to others within the familia. There was also nothing inconsistent about a free pauper or a rich slave, or about having significant social and sexual freedom but no access to political participation or representation.
The authors of the Enlightenment were fully aware of this: like Goldman, they understood liberty is not only plural but relational. They focused their efforts on libertas because that was the aspect of human status they considered most lacking in their societies at the time. The problem we have now is that the “liberal” theorists focus on libertas at the expense of other forms of status, while the “republican” theorists try to collapse everything into one concept. This fails to take the ancient system seriously enough.
We not only have to think about parsing different elements of a “plural” liberty, but also understanding how liberty relates to other aspects of common life that have been downplayed for centuries, but remain vital.
To wit: civitas is very much back in contemporary arguments over immigration and cultural values. Should civil rights or citizenship should be taken from immigrants (or refused to refugees) on the basis of terrorism or refusal to assimilate? Countries that draw a hard, bright line between citizens and non-citizens are not only doing as the Romans did, but are also rejecting bits of universal personhood, one of Goldman’s “liberties of the modern West.” Australia does this, it seems to work, and other countries want to copy. Australia even sends unwanted people to remote islands, Roman-style.
Meanwhile, the rise of the modern corporation, its managerial class, and discretionary private governance has revived debate over issues that look a lot like the old debates over familia: who belongs to it; what do they give up of their personal autonomy to be a member; what rights and duties do they have; under what circumstances can they be thrown out? Employers sacking employees for their views is not a problem of libertas or civitas but familia. It’s also a reminder to be wary of modern corporate entities that claim to treat their staff “like family.” As my father used to say, “this only works when the family is happy; for everything else, you need law.”
If we focus on Roman slavery only as a moral aberration (a behaviour that includes mistaking it for the antebellum South), and so confine ourselves to navel-gazing on our relative moral superiority, the possibility of a richer understanding of our modern liberties is lost. The Emperor is actually wearing clothes—the point is to ask why they have fallen out of fashion in the modern world.