Authors: David Graeber
It’s not surprising that these issues weighed on Plato’s mind. Not seven years before, he had taken an ill-fated sea cruise and wound up being captured and, supposedly like Nicostratus, offered for sale on the auction block at Aegina. However, Plato had better luck. A Libyan philosopher of the Epicurean school, one Annikeris, happened to be in the market at the time. He recognized Plato and ransomed him. Plato felt honor-bound to try to repay him, and his Athenian friends assembled twenty minas in silver with which to do so, but Annikeris refused to accept the money, insisting that it was his honor to be able to benefit a fellow lover of wisdom.
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As indeed it was: Annikeris has been remembered, and celebrated, for his generosity ever since. Plato went on to use the twenty minas to buy land for a school, the famous Academy. And while he hardly showed the same ingratitude as Nicostratus, one does rather get the impression that even Plato wasn’t especially happy about the fact that his subsequent career was, in a sense, made possible by his debt to a man who he probably considered an extremely minor philosopher—and Annikeris wasn’t even Greek! At least this would help explain why Plato, otherwise the inveterate name-dropper, never mentioned Annikeris. We know of his existence only from later biographers.
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If Plato’s work testifies to how profoundly the moral confusion introduced by debt has shaped our traditions of thought, Roman law reveals how much it has shaped even our most familiar institutions.
German legal theorist Rudolf von Jhering famously remarked that ancient Rome had conquered the world three times: the first time through its armies, the second through its religion, the third through its laws.
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He might have added: each time more thoroughly. The Empire, after all, only spanned a tiny portion of the globe; the Roman Catholic Church has spread farther; Roman law has come to provide the language and conceptual underpinnings of legal and constitutional orders everywhere. Law students from South Africa to Peru are expected to spend a good deal of their time memorizing technical terms in Latin, and it is Roman law that provides almost all our basic conceptions about contract, obligation, torts, property, and jurisdiction—and, in a broader sense, of citizenship, rights, and liberties on which political life, too, is based.
This was possible, Jhering held, because, the Romans were the first to turn jurisprudence into a genuine science. Perhaps—but for all that, it remains true that Roman law has a few notoriously quirky features, some so odd that they have confused and confounded jurists ever since Roman law was revived in Italian universities in the High Middle Ages. The most notorious of these is the unique way it defines property. In Roman law, property, or
dominium
, is a relation between a person and a thing, characterized by absolute power of that person over that thing. This definition has caused endless conceptual problems. First of all, it’s not clear what it would mean for a human to have a “relation” with an inanimate object. Human beings can have relations with one another. But what would it mean to have a “relation” with a thing? And if one did, what would it mean to give that relation legal standing? A simple illustration will suffice: imagine a man trapped on a desert island. He might develop extremely personal relationships with, say, the palm trees growing on that island. If he’s there too long, he might well end up giving them all names and spending half his time having imaginary conversations with them. Still, does he
own
them? The question is meaningless. There’s no need to worry about property rights if noone else is there.
Clearly, then, property is not really a relation between a person and a thing. It’s an understanding or arrangement between people concerning things. The only reason that we sometimes fail to notice this is
that in many cases—particularly when we are talking about our rights over our shoes, or cars, or power tools—we are talking of rights held, as English law puts it, “against all the world”—that is, understandings between ourselves and everyone else on the planet, that they will all refrain from interfering with our possessions, and therefore allow us to treat them more or less any way we like. A relation between one person and everyone else on the planet is, understandably, difficult to conceive as such. It’s easier to think of it as a relationship with a thing. But even here, in practice this freedom to do as one likes turns out to be fairly limited. To say that the fact that I own a chainsaw gives me an “absolute power” to do anything I want with it is obviously absurd. Almost anything I might think of doing with a chainsaw outside my own home or land is likely to be illegal, and there are only a limited number of things I can really do with it inside. The only thing “absolute” about my rights to a chainsaw is my right to prevent anyone
else
from using it.
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Nonetheless, Roman law does insist that the basic form of property is private property, and that private property is the owner’s absolute power to do anything he wants with his possessions. Twelfth-century Medieval jurists came to refine this into three principles,
usus
(use of the thing),
fructus
(fruits, i.e., enjoyment of the products of the thing), and
abusus
(abuse or destruction of the thing), but Roman jurists weren’t even interested in specifying that much, since in a certain way, they saw the details as lying entirely outside the domain of law. In fact, scholars have spent a great deal of time debating whether Roman authors actually considered private property to be a right
(ius),
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for the very reason that rights were ultimately based on agreements between people, and one’s power to dispose of one’s property was not: it was just one’s natural ability to do whatever one pleased when social impediments were absent.
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If you think about it, this really is an odd place to start in developing a theory of property law. It is probably fair to say that, in any part of the world, in any period of history, whether in ancient Japan or Machu Picchu, someone who had a piece of string was free to twist it, knot it, pull it apart, or toss it in the fire more or less as they had a mind to. Nowhere else did legal theorists appear to have found this fact in any way interesting or important. Certainly no other tradition makes it the very basis of property law—since, after all, doing so made almost all actual law little more than a series of exceptions.
How did this come about? And why? The most convincing explanation I’ve seen is Orlando Patterson’s: the notion of absolute private property is really derived from slavery. One can imagine property not
as a relation between people, but as a relation between a person and a thing, if one’s starting point is a relation between two people, one of whom is also a thing. (This is how slaves were defined in Roman law: they were people who were also a
res
, a thing.)
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The emphasis on absolute power begins to make sense as well.
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The word
dominium
, meaning absolute private property, was not particularly ancient.
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It only appears in Latin in the late Republic, right around the time when hundreds of thousands of captive laborers were pouring into Italy, and when Rome, as a consequence, was becoming a genuine slave society.
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By 50 bc, Roman writers had come to simply assume that workers—whether the farmworkers harvesting peas in countryside plantations, the muleteers delivering those peas to shops in the city, or the clerks keeping count of them—were someone else’s property. The existence of millions of creatures who were simultaneously persons and things created endless legal problems, and much of the creative genius of Roman law was spent in working out the endless ramifications. One need only flip open a casebook of Roman law to get a sense of these. This is from the second-century jurist Ulpian:
Again, Mela writes that if some persons were playing ball and one of them, hitting the ball quite hard, knocked it against a barber’s hands, and in this way the throat of a slave, whom the barber was shaving, was cut by a razor pressed against it, then who is the person with whom the culpability lay is liable under the Lex Aquilia [the law of civil damages]? Proclus says that the culpability lies with the barber; and indeed, if he was shaving at a place where games are normally played or where traffic was heavy, there is reason to fault him. But it would not be badly held that if someone entrusts himself to a barber who has a chair in a dangerous place, he should have himself to blame.
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In other words, the master cannot claim civil damages against the ballplayers or barber for destroying his property if the real problem was that he bought a stupid slave. Many of these debates might strike us as profoundly exotic (could you be accused of theft for merely convincing a slave to run away? If someone killed a slave who was also your son, could you take your sentimental feelings toward him into account in assessing damages, or would you have to stick to his market value?)—but our contemporary tradition of jurisprudence is founded directly on such debates.
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As for
dominium
, the word is derived from
dominus
, meaning “master” or “slave-owner,” but ultimately from
domus
, meaning “house”
or “household.” It’s of course related to the English term “domestic,” which even now can be used either to mean “pertaining to private life,” or to refer to a servant who cleans the house.
Domus
overlaps somewhat in meaning with
familia
, “family”—but, as proponents of “family values” might be interested to know,
familia
itself ultimately derives from the word
famulus
, meaning “slave.” A family was originally all those people under the domestic authority of a
paterfamilias
, and that authority was, in early Roman law at least, conceived as absolute.
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A man did not have total power over his wife, since she was still to some degree under the protection of her own father, but his children, slaves, and other dependents were his to do with as he wanted—at least in early Roman law, he was perfectly free to whip, torture, or sell them. A father could even execute his children, provided he found them to have committed capital crimes.
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With his slaves, he didn’t even need that excuse.
In creating a notion of
dominium
, then, and thus creating the modern principle of absolute private property, what Roman jurists were doing first of all was taking a principle of domestic authority, of absolute power over people, defining some of those people (slaves) as things, and then extending the logic that originally applied to slaves to geese, chariots, barns, jewelry boxes, and so forth—that is, to every other sort of thing that the law had anything to do with.
It was quite extraordinary, even in the ancient world, for a father to have the right to execute his slaves—let alone his children. No one is quite sure why the early Romans were so extreme in this regard. It’s telling, though, that the earliest Roman debt law was equally unusual in its harshness, since it allowed creditors to execute insolvent debtors.
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The early history of Rome, like the histories of early Greek city-states, was one of continual political struggle between creditors and debtors, until the Roman elite eventually figured out the principle that most successful Mediterranean elites learned: that a free peasantry means a more effective army, and that conquering armies can provide war captives who can do anything debt bondsmen used to do, and therefore, a social compromise—allowing limited popular representation, banning debt slavery, channeling some of the fruits of empire into social-welfare payments—was actually in their interest. Presumably, the absolute power of fathers developed as part of this whole constellation in the same way as we’ve seen elsewhere. Debt bondage reduced family relations to relations of property; social reforms retained the new power of fathers but protected them from debt. At the same time, the increasing influx of slaves soon meant that any even moderately prosperous household was likely to contain slaves. This meant that
the logic of conquest extended into the most intimate aspects of everyday life. Conquered people poured one’s bath and combed one’s hair. Conquered tutors taught one’s children about poetry. Since slaves were sexually available to owners and their families, as well as to their friends and dinner guests, it is likely that most Romans’ first sexual experience was with a boy or girl whose legal status was conceived as that of a defeated enemy.
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Over time, this became more and more of a legal fiction—actual slaves were much more likely to have been paupers sold by parents, unfortunates kidnapped by pirates or bandits, victims of wars or judicial process among barbarians at the fringes of the empire, or children of other slaves.
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Still, the fiction was maintained.
What made Roman slavery so unusual, in historical terms, was a conjuncture of two factors. One was its very arbitrariness. In dramatic contrast with, say plantation slavery in the Americas, there was no sense that certain people were naturally inferior and therefore destined to be slaves. Instead, slavery was seen as a misfortune that could happen to anyone.
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As a result, there was no reason that a slave might not be in every way superior to his or her master: smarter, with a finer sense of morality, better taste, and a greater understanding of philosophy. The master might even be willing to acknowledge this. There was no reason not to, since it had no effect on the nature of the relationship, which was simply one of power.
The second was the absolute nature of this power. There are many places where slaves are conceived as war captives, and masters as conquerors with absolute powers of life and death—but usually, this is something of an abstract principle. Almost everywhere, governments quickly move to limit such rights. At the very least, emperors and kings will insist that they are the only ones with the power to order others put to death.
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But under the Roman Republic there was no emperor; insofar as there was a sovereign body, it was the collective body of the slave-owners themselves. Only under the early Empire do we see any legislation limiting what owners could do to their (human) property: the first being a law of the time of the emperor Tiberius (dated 16 ad) stipulating that a master had to obtain a magistrate’s permission before ordering a slave publicly torn apart by wild beasts.
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However, the absolute nature of the master’s power—the fact that in this context, he effectively
was
the state—also meant that there were also, at first, no restrictions on manumission: a master could liberate his slave, or even adopt him or her, whereby—since liberty meant nothing outside of membership in a community—that slave automatically became a Roman citizen. This led to some very peculiar arrangements. In the first
century ad, for example, it was not uncommon for educated Greeks to have themselves sold into slavery to some wealthy Roman in need of a secretary, entrust the money to a close friend or family member, and then, after a certain interval, buy themselves back, thus obtaining Roman citizenship. This despite the fact that, during such time as they were slaves, if their owner decided to, say, cut one of his secretary’s feet off, legally, he would have been perfectly free to do so.
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